The opinion of the court was delivered, by
Thompson, C. J.In view of the testimony on part of the defendants, there was no room for a doubt that there was a contract of sale by parol of the land in controversy by the plaintiff below to the defendants’ intestate, and so far performed by the latter by *362entering into possession, making valuable improvements, with part payment of the purchase-money, as required the specific execution thereof by the plaintiff, on payment of the entire purchase-money. The testimony showed all this, and it. was in every way sufficient to justify the finding of the jury on this point.
The real question was in fact not this, but the southern boundary of the land. The jury found that that was Clearfield creek, and for this there was sufficient testimony if believed, as it was by the jury. But the plaintiff claimed to fix the boundary by the quantity of land in the strip sold. Having established an initial point and line, the plaintiff claimed ’that this should control the line at the other end of the strip or tract, at a point which would include 90 acres. So it would, if this had been the terms of the contract. But it was not; the land was to go to the creek as the jury have found; and whether from the initial line» or boundary there should be more than 90 acres, it mattered not, for the boundary would control the quantity. The boundaries being fixed, the quantity remained to be ascertained by them, and whatever that was, passed by the sale. The plaintiff was sdcure on these terms, for he was to 'be paid by the acre. Nothing could be more proper than the views expressed by the learned judge as to this matter. It constitutes the first assignment of error in the case, and is not sustained.
What we have already said is sufficient for the other two assignments of error. The whole charge and answers to the points were correct and satisfactory expositions of the law in every aspect of the case, and therefore the judgment is affirmed.