The opinion of the Court was delivered by
Kennedy, J.—■ In the various matters assigned for error, we are unable to perceive anything exceptionable, unless it be that part of the court’s charge to the jury, where the learned Judge notices the first point submitted by the defendants. The Judge, after stating the proposition of the defendants in this point, and the objection made to it on behalf of the plaintiff by his counsel, who cited Goucher v. Martin, (9 Watts 106), in support of the same, proceeds to instruct the jury, by saying, “We do not consider that that case rules the present question; and we believe that a contract for the sale of land, not further executed than this was, in 1829, (the date of the alleged release), may be waived and surrendered by parol; and that such parol waiver is not within the statute of frauds and perjuries. But such waiver of the contract must be indicated by more decisive circumstances; such as the cancellation or giving up of the articles of agreement, or the removing from the possession, in pursuance of the parol agreement; and there must be clear and distinct proof of the contract of release. Here there was no surrender or cancellation of the articles—no removing from the possession, in pursuance of the parol agreement; and the proof of any contract is highly unsatisfactory.”
We think that the learned Judge went rather too far in this instruction to the jury. For although the articles of agreement were not cancelled or given up, or the possession of the land surrendered, in pursuance of the parol agreement; yet if, from what passed between the parties, it was their understanding that it was not the wish of Boyce that the contract for the purchase of the land should be carried into execution, and especially so if it was because, as he said, that it did not adjoin his other land, as he believed it did, when he agreed for the purchase of it, and his request, for this reason, not to carry the agreement into effect, *433was distinctly assented to by Loyd; and Loyd, confiding in the understanding thus produced by parol between them, afterwards sold and conveyed the land to M’Culloch and others, it would, in our apprehension, be sufficient to defeat the equity that Boyce might otherwise have, to call upon the defendants, in a court of equity, as the assignees of Loyd, to convey the land to him which he contracted for the purchase-of from, Loyd. For unless equity would enable Boyce, under these circumstances, to demand and have from the defendants a conveyance of the land, he would not be entitled to recover it in this- action; since it is to be regarded as a substitute for a bill in equity, to compel a specific performance of the contract. If he be entitled to a specific performance, equity will consider that as already done which ought to be done, and the plaintiff below accordingly invested with the legal title, and by virtue thereof entitled to recover the land. No doubt, if evidence had been given, showing that the articles of agreement had been cancelled, or actually given up for that purpose, or such possession as Boyce had, had been surrendered, in pursuance of the agreement to rescind the articles, it "would have made the case perfectly clear for the defendants; because it might have been considered, even at law, as amounting to an actual rescission of the agreement contained in thp articles. Though less than that might not strictly be sufficient to prevent a recovery in a personal action for a non-fulfilment of the articles, yet less may be quite sufficient in equity .to prevent a specific performance thereof. Accordingly, Chancellor Kent, in Stevens v. Cooper, (1 Johns. Ch. Rep. 429, 430), in giving his opinion, and remarking upon the principle that an agreement in writing concerning lands may be discharged by parol, says, that “ the evidence in ■such cases is good only as a defence to a bill for a specific performance; but is totally inadmissible, at law or equity, as a ground to compel a performance in specie.” See also Gorman v. Salisbury, (1 Vern. 240). Also in Bell v. Howard, (9 Mod. 362.) Lord Hardwicke is reported to have said, that it was certain that an interest in land could not be parted with, or waived by naked parol, without writing; yet articles might by parol be so far 'waived,/that if the party came into equity for a specific execution, such parol waiver would rebut the equity which the party before had, and prevent the court -from executing them specifically. See likewise The Earl of Anglesea v. Annesley, (4 Bro. P. C. 421). So in Price v. Dyer, (17 Vez. 363, 364), where the effect of a parol waiver of a written agreement concerning land was very much discussed. Sir William Grant, Master of the Bolls, though he did not consider it necessary to decide the point in that case, because not raised by the evidence fairly, observed that, as then advised, he was inclined to think that a written agreement might be so far waived by parol, that the court would refuse the interposition of its equitable^ jurisdiction to enforce it. Chancellor *434Kent also, in Botsford v. Burr, (2 Johns. Ch. Rep. 416), says there may be a parol waiver even of a written agreement; for which he cites Price v. Dyer. Though it may be proper to observe that Mr Sugden, in his very excellent treatise on the law of vendors and purchasers of real estates, page 150, (9th London edition), seems to think it questionable whether an absolute parol discharge of a wi’itten agreement, not followed by any other agreement upon which the parties have acted, can be set up even as a defence in equity. It may be questionable, perhaps, as Mr Sugden seems to think it is, whether, in general, such parol discharge of a written agreement, without more, would even in equity be a good defence to a specific performance of the written agreement, on a bill between the parties to it. But it is conceived such parol discharge would be a good defence for a third person, who had, as in this case, subsequently become a purchaser of the land for a valuable consideration; possibly, too, upon the faith of the parol discharge of the first agreement, which, if the testimony of William Copely is credited, was made upon what might well be considered a good and binding consideration; that is, the mistake under which Boyce alleged he contracted for the purchase of the land, believing that it adjoined other land which he owned at the time, whereas he had discovered afterwards that such was not the fact. And if this misapprehension, on his part, was produced by the representation of Loyd, in making the written agreement, it may be that Loyd could not have enforced -it; and seeing it was alleged as an excuse or reason by Boyce, for not wishing to carry his agreement into execution, it would seem to be inequitable to permit him, after Loyd had consented at his own solicitation, to discharge him from his contract, and after the land had risen greatly in value) to take it from those to whom Loyd subsequently sold and conveyed it. But if not purchased by the defendants on the faith of the parol discharge, they would appear to have a still stronger equity, and one which Loyd could not have claimed if he had been the defendant; which is, that they purchased the land of Loyd without any notice of Boyce’s agreement for the purchase of it, either actual or constructive. For, it appears in the first place, by the evidence, that they purchased, paid their money, and received a deed of conveyance for the land, fourteen months before Boyce put his agreement upon record, so that they could not have had constructive notice from this source. Again, it would seem from the evidence, that Boyce had not such a possession of the land as would be equivalent to notice. In order that possession shall amount to notice, it must be a notorious and exclusive possession. According to the evidence given, it would appear that he cleared only about half an acre of the land, and cultivated it; that he also, according to the testimony of one witness, Samuel Stine, built a house upon this half acre; but according to *435evidence of another witness for Boyce, Doctor Engles, the house stood 150 rods from the cleared half acre, and that he supposed the house was on the land in dispute. This was certainly very unsatisfactory evidence, to say the most of it. But by the terms of his agreement for the purchase of the land, it being all wood land, Loyd was to have the possession of it, notwithstanding the agreement for sale, until he cut and removed all the timber growing upon it, and accordingly did retain the possession for that purpose, at least, until he sold and conveyed it, timber and all, to the defendants below. It would therefore seem, from the evidence, that Boyce never had any such distinct and exclusive possession as would be likely to come under the notice and observation of strangers or purchasers. And as to evidence being given on the trial of notice in fact to the defendants, before or at the time of their purchase of the land, there is none. We therefore think that under the particular circumstances of this case, there ought to be a new trial.
Judgment reversed, and venire de novo awarded.