The opinion of the court was delivered by
Woodward, J.In considering this case it is very material to bear constantly in mind that the legal title to the premises in controversy was never in the plaintiffs.
James Hannegan, in whom the title had vested, entered into articles of agreement on the 4th of June, 1831, for the sale of it to Samuel Walters, who, on the 10th of September, 1832, assigned the articles to the plaintiffs and their brother, Edmund Workman, as tenants in common, in consideration of $700. Walters paid Hannegan, and the Workmans paid Walters the stipulated purchase-money, and full possession of the land was delivered to the Workmans; but still the legal title remained in Hannegan until the 19th of August, 1847, when he conveyed it to John M. Fleming, who conveyed it, the 25th October, 1848, to the defendant, James W. Guthrie. It is an undisputed fact in the case that Guthrie obtained peaceable possession of the land under a conveyance from Edmund, which was a valid title to an undivided third part.
This action of ejectment, therefore, is to be regarded as a bill in equity by two tenants in common of an equitable estate, out of possession, praying for a decree against their co-tenant in lawful and exclusive possession, and clothed with the legal title, that he be compelled to convey to them that legal title to two undivided thirds of the estate, and admit them to the possession in common with himself.
Their right to have the relief they seek depends on the application of legal and equitable principles, not only to the ease they present, but to the facts put in evidence by the defendant; and as these facts are not, all of them, common to both plaintiffs, it will be convenient to consider the rights of the respective plaintiffs separately.
And first, of William B. Workman. By virtue of Walters’s assignment of the articles of agreement with Hannegan, William B. Workman became entitled to have, on payment of the purchase-money, the legal title to a third of the land; and whilst he was in possession under those articles, the purchase-money being paid, equity would consider that as done which ought to be done, and would treat him, as against all parties not having a superior equity, as the absolute owner of the legal, as well as equitable estate: Moody v. Vandike, 4 Binn. 41; Vincent v. Huff, 4 S. & R. 301.
.But it was alleged, and evidence was given tending to show that William grew tired of the lumbering business, expressed his intention and desire to sell the property, and, in connexion with his brother Edmund, sought a purchaser with a .view of saving it from sacrifice at an impending sheriff’s sale. The defendant insists *507that he was induced to purchase as well by William as Edmund; and that, at their joint solicitation, he paid off the judgments against them, which were threatening to sell the property; that they both concurred in putting him in possession; and that the deed executed by Edmund, as well as the order on Hannegan to convey the title, were made in the name of William by his authority in writing; and if they were not so executed, they were ratified and confirmed by his subsequent acts and declarations. The third and fourth points submitted by the defendant present a strong case against the equitable relief sought by William. There was evidence to sustain the facts assumed in these points, and, under the charge of the court, we are to regard the verdict as establishing the facts.
It is apparent, then, that William’s equities, so far as they re-’ suited from his taking possession and paying the purchase-money to Walters, were lost when he surrendered the possession to Guthrie as a purchaser, and permitted him to pay off the judgments of Wilson and Barber, and of William H. Lowry. These judgments were against both the brothers, and bound their entire interest in the land. Execution was out, and the sheriff under orders to sell. “William told me,” says the witness Andrews, “that Guthrie was going to have the mill; that they had sold for enough to make up these judgments, and a little more. He allowed it did not go for enough; but that it would not sell for as much at sheriff’s sale; they both allowed that.” According to Mix, whose credibility, though questioned, was for the jury, “William said he had made arrangements with Mr. Guthrie, and had sold the property. William said they had saved $400 or $500 by the operation by doing so; he did not say how much they had got.” How completely William concurred in putting Guthrie in possession, is shown by his advising him to retain Andrews at the mill, who “ would do as well as anybody he could get.”
Now if it be conceded that there was no competent evidence of William’s authority to Edmund to execute a deed in his name, and no sufficient ratification of the conveyance made by Edmund, yet it is a principle of equity that if a man having a title to an estate which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it; and thereby another person is induced to purchase the estate under the supposition that the title is good, the former so standing by and being silent, shall be bound by the sale; and neither he nor his privies shall be at liberty to dispute the validity of the purchase: Storrs v. Barker, 6 Johns. Ch. R. 166; 1 Story’s Equity, pl. 385.
It is a maxim of the civil law, Semper, qui non prohibet fro se intervenire, mandare creditur.
As this case was put to the jury, it is abundantly established that William encouraged and concurred in the sale to Guthrie, and *508that he had knowledge of Edmund’s conveyance. Be it that the deed was not so executed as to bind him as a deed; be it, if you please, that no deed whatever was executed; what standing would William still have in a court of equity ? Releasing by parol his equities to the holder of the legal title — obtaining a valuable consideration, so timely paid as to avert a sheriff’s sale, and of such amount as to save a surplus for himself and brother from the impending wreck — acquiescing for ten years in the defendant’s possession thus fairly bought, and suffering him to expend large sums of money in improving the premises without a note of warning or remonstrance, a court of equity is the last place in the world where William should come for relief. Who would have equity must do equity. William cannot be permitted to enjoy the consideration received and to recover the land. It would be a fraud on Guthrie to let the plaintiff recover back premises so well paid for and so extensively improved. It is impossible for a case to be more destitute of merit than William’s. Indeed, it is not too much to say that he has no case. Having never acquired the legal title, he is found to have stripped himself of what equities he possessed, and now he is in court without law or equity to sustain him.
But it is complained that the defence rested wholly in parol. The court below, whilst they received and submitted, the parol evidence of the defendant, seemed to think it was to be judged by those strict rules which under the statute of frauds and perjuries are applicable to parol transfers of titles; and the argument in this court on the part of the plaintiffs in error, labours under the same impression. The errors assigned, so far as they relate to the ruling that touched William’s interest, are all based on the assumption that unless the defendant made out such a case as would be sufficient to ground a decree in his favour, William must recover his undivided third.
It was to point out the fallacy of these views that I was at the pains of stating so precisely the relative positions of the parties before the court. The defendant is asking for no relief. In possession under the legal title — enjoying all he claims — he brings forward his parol proofs, not to ground a decree in his favour, but simply to rebut the equity set up by the plaintiffs. The question in the cause, therefore, is not whether a chancellor would upon such proofs decree a conveyance to Guthrie, but whether such evidence would restrain him from decreeing a conveyance to William. There is a plain distinction taken in the books between the effect of parol evidence when set up to support and when to bar an equity. The leading case is Gorman v. Salisbury, 1 Vernon 239, where the single point was whether an agreement in writing, made since the statute of frauds and perjuries, might be discharged by parol. The Lord Keeper held it might, and therefore dismissed *509the bill, which was brought to have the agreement executed in specie.
Sir Edward Sugden states the rule in these words: “When equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, the party to be charged is to be let in to show that under the circumstances the plaintiff is not entitled to have the agreement specifically performed.” Among the authorities he quotes, is Lord Redesdale’s criticism on the statute of frauds and perjuries, in 1 Scho. & Lef. R. 39, that it, the statute, does not say a written agreement shall bind, but that an unwritten agreement shall not bind: Sugden on Vendors 164, et seq. At page 176 this author enters into a critical analysis of several cases on the question of a parol discharge of written agreements, and concludes by saying (p. 180) that whether an absolute parol discharge of a written agreement, not followed by any other agreement upon which the parties have acted, can be set up even as a defence in equity, seems questionable. How he could express such a doubt after giving the result of the authorities he quotes in the distinct terms I have cited, I am at a loss to understand. Judge Kennedy alludes to this doubt of Sir E. Sugden in Boyce v. McCullach, 3 W. & S. 429, where he held that a mere parol discharge of a written agreement for lands, without cancellation of the agreement, or removal from the lands, or any other decisive act in pursuance of the parol discharge, was binding as between the vendee and a subsequent purchaser from the vendor. Chancellor Kent, too, in Botsford v. Burr, 2 Johns. Ch. R. 416, in ruling that parol evidence is admissible to rebut a resulting trust, added there may be a parol waiver even of a written agreement, and for this he refers himself to Price v. Dyer, 17 Vesey 356, where the master of the rolls, Sir William Grant, though he did not rule the point, said, “ I incline to think upon the doctrine of this court such would be the effect of a parol waiver clearly and satisfactorily proved.”
In Stevens v. Cooper, 1 Johns. Ch. R. 429, Chancellor Kent distinctly recognised the rule, but said the evidence in such cases is good only as a defence to a bill for a specific performance, and is totally inadmissible at law or equity as a ground to compel a performance in specie.
Notwithstanding the measured terms in which Sir William Grant recognised the rule in Price v. Dyer, he laid it down in the very words of Sugden which I have quoted in his judgment in Woollam v. Hearne, 7 Vesey 211, and said there were many eases in which parol evidence of such circumstances (to bar plaintiff's equity) has been admitted, and he cited Buxton v. Lister, 3 Atkyns 383; Joynes v. Statham, Id. 388; and Walker v. Walker, 2 Atkyns 98. The point ruled in. Woollam v. Hearne, that though a defendant resisting specific performance may go into parol evidence to show that by fraud the written agreement does not express the *510real terms, a plaintiff cannot do so for the purpose of obtaining a specific performance with a variation — is an emphatic expression of the distinction between a plaintiff seeking and a defendant resisting specific performance, but it is, in itself considered, a doctrine which we do not follow. In cases of fraud, mistake, surprise, or trust, we allow either plaintiff or defendant to go into parol evidence. We follow Chancellor Kent’s able opinion in Gillespie v. Moon, 2 Johns. Ch. R. 585, as was indicated in our recent opinion in Raffensberger v. Collison & Roth, Middle District, June Term, 1857. The American cases generally are to the same point, in questions of fraud or mistake, whilst on the precise point before us now, the right of a defendant to show by parol that the plaintiff has surrendered all his equities, I know of no discrepancy in the American authorities. See the note of Hare & Wallace, 2d vol. part 1, Leading Cases in Equity, p. 528 et seq.
The truth that underlies this whole subject is, that specific performance rests in the discretion of the chancellor, and though, like his other powers, it is not to be arbitrarily exercised or withheld, but is governed by principles of reason and law, yet it is an extraordinary power, and whatever is calculated reasonably to persuade his conscience that in a given case it would be contrary to equity and justice to exercise it, must be admissible in evidence, or the rights of parties cannot be administered. The statute of frauds and perjuries has nothing to do with the question, and this ruling must not be confounded with those cases in which we have refused to .transfer titles on parol evidence. We do not violate the statute when we refuse to decree specific performance, but only when we decree it on less than written evidence. The statute does not say the written agreement shall bind, but that the unwritten agreement shall not bind. It is one thing for a chancellor to say, I will not decree a conveyance upon parol proof, in opposition to the letter and spirit of a statute, and a very different thing to say, I perceive you have no equity, though you hold written articles, because you have waived them for a valuable consideration in favour of him who holds the legal title. The difference is as palpable as a mountain, and I will say no more to illustrate it.
It is material to observe, however, that in the case before us there was much more in proof than a mere waiver by William of his rights under the articles of agreement. His receipt of the purchase-money, or what is the same thing, his acquiescence in the defendant’s payment to his use; his surrender of the possession to the defendant, and the encouraging him to occupy and improve; his total and long-continued abandonment of the premises, accompanied by declarations frequent, full, and precise, that he had sold the property to the very man from whom he now seeks to recover it; — these acts and declarations were sufficient to estop and bar the plaintiff, if anything short of a written instru*511ment could have that effect. And that a plaintiff may, by acts and declarations, without writing, place himself in circumstances to forfeit all right to the interposition of equity in his behalf, is abundantly evident from the authorities to which I have adverted.
This view of William’s case makes it unnecessary to consider several of the errors assigned to rulings that touched Edmund’s authority to execute the deed. That instrument, as well as the written order on Hannegan to convey the title to Guthrie, were properly received in evidence, for they were effectual, at the least, to vest Edmund’s interest in Guthrie, but we do not put our judgment on them as the deeds of William. If all the court said about parol authority to convey, and about subsequent ratification, were to be held erroneous, the judgment, so far as William is concerned, would have to be aflirmed, for there are facts and circumstances enough on the record to sustain it, independently of the written instrument.
It is time, now, to look at the rights of the other plaintiff, James C. Workman. His interest originated in the same articles of agreement as that of his brothers; but his case, as presented upon the record before us, differs very widely from William’s. He never sold to Guthrie, nor encouraged him to buy of Edmund, nor to pay off liens, nor to take possession and make improvements. Guthrie does not claim his interest by virtue of any waiver, substitution, or surrender in his favour. He claims it no otherwise than under the deed of Edmund of 17th June, 1843, and the statute of limitations. The deed, as has just been said, was properly admitted in evidence for whatever interest Edmund had to convey; but inasmuch as under the original articles he was entitled to only an undivided third part, it wras necessary for the defendant to show a sale and transfer of James’s interest to Edmund. This branch of the ease involves no peculiar equities. It is the case of one man claiming another’s title in land, and so far as it involves a purchase, it is to be made out according to the law which regulates conveyances of real titles.
How was it done ? By proof of declarations merely. There was much evidence of this sort reaching back for more than twenty years, and there was some evidence of the price and terms of sale; but without pausing to scrutinize it, what is conclusive against it as an attempt to establish a parol sale, is the utter want of possession taken and maintained under it. The cases cited in the argument show that this is an indispensable requisite of a parol sale. But Edmund, took possession, it is said, and kept it till he sold to Guthrie. The answer is, he had it in common with his brothers from the first, so that it wTas impossible for him to assume the possession under and in pursuance of the purchase of his brother. What, then, it is asked, can there be no sale of land *512by parol among tenants in common where all are in possession ? Certainly not; because the statute of frauds and perjuries forbids it, and there cannot be such part performance as would take it out of the operation of that wise and salutary rule of titles : Galbreath v. Galbreath, 5 Watts 149.
Several of the cases, cited in the paper-book, show that for the same reason a tenant in possession cannot purchase the reversion of his landlord by parol. Whilst possession, in pursuance of a parol contract, is not of itself such part performance as necessarily to take it out of the statute, it is an indispensable accompaniment of every parol contract that hopes for specific execution; and where the contracting parties already maintain such relations as to preclude the possibility of surrendering and taking possession, under, in pursuance, and by reason of the contract, they must fall back on the easy and reasonable rule of the statute, and put their contract in “writing, signed by the parties.” If, then, the defendant has failed to show a legal divesture of James’s interest, the only ground on which he can resist a recovery is the statute of limitations.
This action was brought in 1855. James quit the possession in 1832 or 1833, and the court seems to have assumed that the possession from that time (in Edmund and William till 1843, and since then in Guthrie) has been adverse to him. They instructed the jury, in answer to the plaintiff’s third point, that the facts in proof would amount to an ouster of James, and of course to an adverse holding by his brother and his alienee. This, though assigned for error, is not pressed in the argument. The ouster was a question of fact, and there was enough in the case to justify the court in leaving it to the jury, and to justify them in finding it. If 1833 be assumed as the period of the ouster, there were more than twenty-one years of adverse possession before this suit was brought; but it was in evidence that these plaintiffs instituted an ejectment for the same land on the 3d December, 1853, and suffered nonsuit therein on the 4th September, 1854. William H. Lowry also swore that he had a survey made for the Workman family in 1854 — or the fall of 1853 — that before the suit of 1853 was brought, he made an entry to forbid the cutting of timber, and forbid one Ben Davis, who was there. He said he was acting under a power of attorney, but when it was given in evidence, on the part of the defendants, it appeared to be from William B. Workman and H. Weir Workman, attorney for James C. Workman, administrator of Edmund Workman, deceased, dated 6th May, 1853.
On these grounds the plaintiffs insisted that the. running of the statute had been arrested within twenty-one years from the ouster, and the court affirmed their fifth point, which was to this effect. Of course, there is no assignment of error on this instruction, but *513as the cause is to go back for another trial, we think it proper to say that we consider the court in error on this point.
An entry by the true owner can alone toll the statute, and if we understand Lowry’s agency aright, he was not acting for James C. Workman in his own right, but only in his representative capacity, as the administrator of his deceased brother Edmund. Lowry’s entry, even if the facts were sufficient to constitute it such an one as would toll the statute, was Edmund’s rather than James’s entry. It cannot, therefore, avail the title of the latter.
As to the ejectment of 1853, the law is, that an unsuccessful suit leading to no change of possession, does not stop the running of the statute: 19 Howard 71; 1 S. & R. 237.
It results, from all we have said, that the judgment against William was right; not on the ground on which the court put it, so much as upon that which has been developed in this opinion, but that the judgment against James was wrong on the ground of a parol sale. Whether he might not have been defeated on the statute of limitations, the erroneous ruling of the court in reference to the effect of Lowry’s entry and the prior ejectment, has rendered it impossible for us to determine. The case should be tried as to him upon the statute of limitations, and then all the questions, ouster, adverse holding, and re-entry, can be fairly met and properly disposed of.
The judgment is affirmed as to William B. Workman, and is reversed as to James 0. Workman, and a venire de novo is awarded.