The opinion of the court was delivered by
Thompson, J.The respective titles of the claimants in this action of ejectment, appear in 10 Casey 74, and need not be restated. It also appears, under the same reference, that one of the main points (title in the defendants by virtue of the statute of limitations) was passed upon by this court. Whether any new or other testimony on this point was given on the last trial, we are uninformed, but we may fairly presume there was. not. This being so, we will not allow ourselves to be called upon to review *516that decision. If it were an open question, however, we could come to no other conclusion than therein expressed. The case of Ament’s Executors v. Wolf, 9 Casey 331, is far from reaching this case. It differs widely from it, not only in the unmistakeable character of the occupancy, but in the clear proof of its continuity. It is well known, that I did not agree to the principle of that case; but it is nevertheless the law, and not open now to be contested; and it does not help the plaintiff in error. There the possession was taken pursuant to a warrant and survey, and it was kept up, using the woodland, as farmers usually do, within the survey. There could hardly be a question, it was thought, about the notoriety and adverse character of the possession. Here, the clearing over by Anderson was of but a few perches (135) on the land in dispute. There had been a prior clearing of 140 perches, at another place, by some other person, but it seems, that had been suffered to grow up again into a wild state. There was no payment of taxes by Anderson oh the Mary Foster warrant, under the purchase from B. Foster of the undivided half of it. Indeed, it would seem, he did not rely on this title, for he neither paid taxes, as an owner, nor placed it on record until 1854. He undoubtedly knew Benjamin’s title; that it was derived through a parol sale from Thomas Foster, who had no title to sell, and even the terms of that sale had not been complied with by the purchasers. This accounts for the estimate Anderson seemed to place upon his title by purchase. But as there was no actual taking possession of the entire tract, with the avowed intent of holding it, or by other notorious and distinct acts, showing a claim to the whole of it, such as occupying a portion of it, and having the whole returned and taxed, as a claimant of it, it became important to rely on this clearing over the line (an extension, it would appear, of improvements on adjoining tract), as under colour of title, by reason of the purchase from Benjamin. But this occupancy, without more, was too equivocal for that. It was notice of nothing but an interference — it was not exclusive. It was only indicative of a common occurrence — of one owner extending his fields by accident, on to lands of another. The statute has never been held to apply, in such cases, to more than the ground enclosed. Here it was only 135 perches; for the former clearing, by some other occupant, on the adjoining tract of 140 perches, had been suffered to grow up and return to its wild state. Besides all this, Anderson, it would seem, had laid off the purchase from Benjamin, from the west end of the tract, by a line on the ground, winch excluded the land in controversy. How, then, could, his entry on the portion now claifned, be considered under colour of title? But we need not pursue this subject further. The requisites, necessary to make title by the statute, wrere not in evidence, and it was proper in the court to refuse to submit the *517question on the statute to the jury: De Haven v. Landed, 7 Casey 120.
The second adeged error is to the affirmative response of the court to the plaintiff’s third point. The proof of the parol sale and evidence of performance, in this case, would, at no time in the judicial administration of the statute of frauds, in this Commonwealth, have been held sufficient to take the case out of its operation. It falls far short of the modern requisites: Brawdy v. Brawdy, 7 Barr 160; Poorman v. Kilgore, 2 Casey 371; Blakeslee Blakeslee, 10 Harris 243; Postlethwait v. Frease, 7 Casey 472; Irwin v. Irwin, 10 Id. 525. Here, there was no payment of purchase-money, no improvements made, and no promise to convey. It is idle to talk about title through such a contract, and the court was right iii regard to this point.
The fourth assignment of error is to the refusal of the court to charge that the plaintiff was estopped by the act of Entriken in paying $5, the one-half of the patenting fees for the patent, to Anderson for the land in dispute. The doctrine of equitable estoppels is all right in proper cases, but facts must exist to give rise to it. After Anderson had taken out the patent, Entriken having an undisputed title to 28 acres of the tract, as he supposed, gave him $5 for a release of the legal title to that portion of it. Did this estop him from claiming more of the tract' as between him and Anderson ? We think it would be hard to maintain such a position. Anderson was not induced to take out the title by any pre-agreement that Entriken was to pay half, and to have only the 28 acres; and there is not even a pretence that the defendants either knew of the payment of the $5, much less acted upon it in making the purchase. It would hardly have helped them if they had. It was in no sense an estoppel, and the court were right in refusing to charge as requested. The numerous autho-' rities cited by the plaintiff in error, are indisputably the law ; but the facts are not sufficient in our opinion to raise the point.
The fifth point we do not find sustained by the evidence, and hence it was not error to answer it in the negative or not to answer it at all.
The sixth point is more barren of merit, as an estoppel, than the assignment of error already disposed of on that subject. The foundation for it in the evidence is, that the parol sale of the warrant' in the name of Mary Foster, by Thomas to Benjamin and Ephraim Foster, was frequently talked about in her presence. There is no evidence that these conversations took place before the sale, or that Benjamin and Ephraim were induced to believe the warrant belonged to Thomas, and were thus misled into making the purchase. This would' have been material to have been shown, if there had been a purchase that could have been *518implied, as against Thomas, supposing him to have been the legal owner. But they could not well complain that they were defrauded by the silence of Mary Foster into the making of a contract, that was void by force of the statute, that was no contract for the passage of a title, under all the circumstances of- the case. Nor could the most unsophisticated individual have been much damaged by a contract on which it would appear nothing was paid, and no improvements made. The doctrine of estoppel has no place in such a state of facts. •
Judgment affirmed.