The opinion of the court was delivered, by
Thompson, J.The legal title to the land in controversy, if in Joseph Webster, Sr., at his death descended to his heirs, and they could unquestionably maintain ejectment upon it, and recover unless prevented by some controlling equity. The defendant set up a contract for the land with the ancestor of the plaintiff; a partial payment of the purchase-money, and long-continued pos*164session under it. This was an equity the court could not disregard, and the moment this appeared to be so, the proceeding assumed the shape of an equity proceeding, 1 Casey 466, and subject to equity principles, although to be administered in a common-law action. It was right, therefore, to direct a conditional verdict if the contract was binding. So, too, under the circumstances, we think it was entirely within the power of the judge acting as a chancellor, to make the order he did, for the payment of the money into court to await the making of a deed by the proper parties. It is manifest if he did not take such a step, either the defendant would be obliged to pay his money to the heirs to save the condition in the verdict, and then run the risk of ever getting a deed, or on failure to pay lose the land. The money was ordered into court, and paid accordingly, and of this the plaintiffs had notice. If after this they issued a habere facias without leave of court, they of course have not much reason to complain that it was set aside, for it was directly in conflict with the order to pay the money into court. As we think the order was right, so we think that the setting aside the habere facias was right, and within the power of the judge as chancellor. The time limited within which the money is by the verdict to be paid, does not always absolutely control. There may be cases in which equity may require an enlargement of the time : Creigh v. Shatto, 9 W. & S. 82, and other cases. There was no forfeiture here, therefore, by reason of the non-payment of the money to the plaintiffs, for the judge modified the performance by the defendant, as he might do, in order more effectually to do equity.
The objection to the defendant’s equity, that it was barred by the Act of 22d April 1856, was not well considered. This is a limitation beyond which an action for specific performance of a contract for the sale of real estate cannot be maintained. But that was not the defendant’s position. He was simply setting up an equity, which he had been asserting by living and improving under it for upwards of twenty years. There is no statute to debar him from that. We have lately held in Clark v. Trindle et al., 2 P. F. Smith 492, that a party in possession is not barred by the act from setting up an equity, as he would be from enforcing it by action.
We see nothing wrong in the action of the court in any particular in the case, and we must affirm it. We are not called on to say anything about who will be entitled to the money, or who is to make title. The court below will no doubt rightly determine that in due season.
Judgment, as well as the subsequent proceedings, affirmed.