We are in accord with the view of the learned vice-chancellor, orally expressed at the conclusion of the hearing, that *Page 98 the contract between complainant and defendant, providing for the sale by the former to the latter of a tract of land and dwelling house thereon erected, should be canceled, and possession of the lands surrendered to complainant. The latter was not, under the circumstances, entitled to specific performance.
But we find no basis in the proofs for the conclusion that the defendant was chargeable in equity, by reason of his possession of the land, with a sum in excess of $1,500, the moneys paid by him to the complainant under the contract of sale. There was no evidence of the reasonable value of the possession; and while it may very well be, as the vice-chancellor pointed out, that in all likelihood the total sum paid by the defendant under the contract will be found to be substantially less than the value of the possession, surmise is not the equivalent of proof. It follows that the decree, in thus assuming that the sum which is equitably chargeable to defendant, by reason of the possession, is greater than the sum paid by him under the contract, is erroneous.
We have considered the jurisdictional question raised, and find it to be without substance.
The decree is accordingly modified; and the cause is remanded with direction to ascertain the value of defendant's possession of the lands, and to enter a decree conformably therewith.
For modification — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 15. *Page 99