3 Sandf. Ch. 279. But see peifer v. Landis, 1 Watts, 392.

(v) See Moore v. Small, 19 Pa. 461; Haslet v. Haslet, 6 Watts, 464; Frye v. Shepler, 9 Barr, 91; Woods v. Farmare, 10 Watts. 195; Pugh v. Good, 3 Watts & S. 56. It has been held in Pennsylvania, that unless possession be delivered in the vendor's lifetime, the contract, if not in writing, cannot be enforced against his heirs. Sage v. M'Guire, 4 Watts & S. 228.

(vv) Traphagan v. Traphagan, 40 Barb 537; Bennett v. Abrams, 41 Barb. 619; Williston v. Williston, 41 Barb 635; Morrison v. Peay, 21 Ark. 110, Eyre v Eyre, 4 Greeu, 102; Spear v. Orendorf, 26 Md. 37.

(w) Wack v. Sorber, 2 Whart. 387, which, however, was a case of parol gift from parent to child. See Morphett v. Jones, I Swanst. 181; Frame v. Dawson, 14 Ves. 386; Hatcher v. Hatcher, 1 Mc-Mullan, Eq. 311. "Whether the possession be an unequivocal act, amounting to part performance, must depend upon the transaction itself, whether it be so circumof a part enough; (x) nor is a possession without delivery, or without the intention or consent of the owner; (y) still less, if the possession has been obtained by fraud or indirection. (z) So a mere continued possession by the plaintiff, he having been in possession before the contract, is not enough, unless there be declarations or circumstances distinctly showing that this continuity of possession is in pursuance and execution of the contract, and so regarded by the parties, (a) This may be made apparent by paying more rent, or making improvements, or expending money, or doing other things required by the contract.l

1 Where a purchaser, induced by fraudulent misrepresentations, accepts a conveyance, not including all the land orally agreed to be conveyed, pays the price and enters into possession, he may have specific performance, although he has made no improvements on the land excluded. Beardsley v. Duntley, 69 N. Y. 577. And if in such a conveyance the consideration is wrongly expressed and unauthorized reservations are made, so that the buyer returns it to the seller, who promises to rectify it, the cutting roads to a highway and elsewhere over the land, underbrushing it, cutting up fallen trees, clearing a portion, erecting a shanty, drawing wood, and paying taxes, are a sufficient part performance to take the case out of the statute of frauds. Miller v. Ball, 64 N. Y. 286. - K.

2 The expression of an intention or expectation by a father to let his son have certain land upon the son's paving off a mortgage given by the father, which he fails to do, and where the rents and profits have compensated the son for all outlays made by him thereon in improvements, is no ground for specific performance. Cassel v. Cassel, 104 111. 361. See Galloway v. Garland, id. 275. - K.

Whether a mere payment is a part performance sufficient to sustain the application in equity, was uncertain. At first * the court seemed to think that if but little money was paid, it was not a sufficient part performance, but if much, it was. (b) This distinction has not been made in modern times, stanced that it can refer only to a contract of sale, if it be so, the party may go into evidence of the terms." Lord Manners, Ch., Savage v Carroll, 1 Ball & B 282.

(x) Allen's Estate, I Watts & S. 383. It is to be observed that this was the case of a parol sale of two distinct parcels of land for a sum in gross, and therefore it decides no more than that the delivery of possession of one of two distinct and separate parcels, in pursuance of an entire contract for the sale of both, is not a sufficient part performance to take the case oat of the statute. Vide, per Kennedy, J., id. 389. And see contra, Smith v Underdanck, 1 Sandf. Ch. 581. Where two lots are put up and sold separately to the same buyer, a possession of one cannot be considered as a part performance of the contract for the sale of the other. Buckmaster v. Harrop, 7 Ves. 346. As to the general question, whether a certain contract for the sale of things having a distinct existence and value is or is not entire, see Crosse v. Lawrence, 9 Hare, 462, 10 Eng L & Eq. 7.

(y) But if the plaintiff be not shown to have otherwise some right to the occupation of the land his possession is prima facie to be referred to the agreement Gregory v Mighell, 18 Ves. 333. If the tenant in occupation attorn to the vendee, with the knowledge and consent of the vendor, that is a sufficient delivery of possession. Williams v. Landman, 8 Watts & S 55. Compare Brawdy v. Brawdy, 7 Barr, 157

(z) Cole v. White, cited 1 Bro. C. C. 409.

(a) Wills v. Stradling, 3 Ves. 378; Frame v Dawson, 14 Ves. 388; Maddison v Alderaon, 8 App. Cas. 467; Johnston p. Glancy, 4 Blackf. 99; Judy v. Gilbert, 77 Ind. 96; Christy v. Barn hart, 14 Pa. 260. See Kine v. Balfe, 2 Ball & B. 343; Gregory v. Mighell, 18 Ves. 328; Drury r. Conner, 6 Harris & J. 292. And a possession which can be referred to another, though subsequent, parol agreement is not sufficient. Owings v. Baldwin, I Md. Ch. Dec. 120. But it has been held, that a continuance of possession by the plaintiff may be a part performance where he would otherwise be a trespasser. Smith v Smith, I Rich. Eq. 130. As to possession in the case of a contract of sale between tenants in common, see Galbreath v. Galbreath, 5 Watts, 146.

(b) Main v. Melbourne, 4 Ves. 720. See Ex parte Hooper, 19 id. -179. In Lacon v. Mertins, 3 Atk. 4. Lord Hardwicke said: " Paying of money has been always held in this court as a part performance."

1 The reason that equity enforces such contracts seems to be that it is fraudulent after one party to a contract has gone to trouble and expense, relying on the contract, that the other party should, by setting up the statute of frauds, deprive him of the benefit of what has been done. Consequently, it is essential that the part performance which is relied on to take the case out of the scope of the statute, should have been on the plaintiff's part, and should have been with the defendant's knowledge or assent. See Morrison u. Herrick, 130 111. 631 ; Nibert v. Baghurst, 47 N. J. Eq. 201.