As the demurrer to the evidence was interposed by the defendant, it was the duty of the court to render a judgment against him, if the jury, from that evidence, could legally have found a verdict against him; for the effect of his demurrer, when there was joinder therein, was an admission on his part, upon the record, *180of every fact and every conclusion -which the evidence tended to establish. — Shaw v. White, 28 Ala. 637, and authorities there cited.
But facts which did not occur until after this action was commenced, and which are essential to a recovery by the plaintiff, cannot support this action. In determining his right to recover, we must distinguish between facts occurring before the action was commenced, and facts occurring after it was brought. He must fail, unless the facts which existed when he sued entitled him to recover.
Conceding that the contract for the sale of the land, on which the money was paid by the plaintiff’s intestate, was merely verbal; yet it is clear, that said intestate, as vendee, held the uninterrupted possession of the land for several years, and until his death; that for several years after his death, and until after this suit was commenced, his widow continued in the uninterrupted x^088688*011 thereof; and that up to the time when this suit was commenced, nothing was said or done by the vendor, or by the . vendee, his widow, heirs, or representative, which can amount, in law, to a rescission of the contract. The acts and declarations of the vendee, his widow, heirs, or representatives, before the commencement of this suit, do not even show an intention to abandon or rescind the contract. The acts and declarations of the vendor', before the commencement of this mil, show, at most, only an intention to rescind it; and when this case was previously in this court, it was decided, that, in no asxrect of the case could the mere unexecuted intention of the vendor to abandon the contract amount to an actual abandonment, or justify the vendee in so treating it. — 22 Ala. 460.
In Cope v. Williams, 4 Ala. 362, this court, after commenting upon the previous cases of Allen v. Booker and Meredith v. Nash, decided, that one who has made a parol contract for the purchase of land, paid one half of the purchase-money, and retains the uninterrupted %possession, cannot maintain an action against the vendor, for the recovery of the money received by him. The correctness of that decision has not been denied, but its authority has been recognized, in subsequent cases in this court; (John*181son v. Hanson, 6 Ala. 35; Gillespie v. Battle, 15 Ala. 276 ;) and we feel bound to adhere to it. See, also, Lewis v. Whitnell, 5 Monroe, 191.
In Johnson v. Hanson, supra, it was held, tha tuponaverbal contract for the sale of land, the vendor cannot maintain an action at law for the unpaid balance of the purchase-money, although the vendee has paid part ’ of the agreed price, and retains the possession of the land. But that decision, even if apparently in conflict with what was held in Cope v. Williams, is really reconcilable with it. The only right of recovery asserted in Cope v. Williams, was founded on the statute of frauds. The only ground of defense relied on in Johnson v. Hanson, was founded on that statute. That statute “does not expressly and immediately vacate” a verbal contract for the ^sale of land; it only precludes the bringing of an action to enforce it, by charging the vendee or his representatives, on the ground of such contract, and of some breach thereof. That description of action applied to the one brought in Johnson v. Hanson, but not to the one brought in Cope v. Williams. The statute expressly created the ground of defense which was relied on and sustained in J ohnson v. Hanson; but it certainly did not create any such right of action as was asserted in Cope v. Williams, upon the facts shown in that case. In J ohnson v. Hanson, the express words of the statute were obeyed; in Cope v. Williams, none of its provisions were disobeyed. — Crosby v. Wadsworth, 6 East, 603; Lewis v. Whitnell, 5 Monroe, 191.
. When the action is upon a verbal contract for the sale of land, it cannot be maintained, in a court of law. When, however, the action is not upon the contract itself, but upon the note of the vendee given for the price of the land, he cannot defeat a recovery, by merely proving that the contract was verbal. — Gillespie v. Battle, supra; Crosby v. Wadsworth, supra; Merriweather v. Taylor, 15 Ala. 735. And we think it would be absurd to hold, that although such proof would not entitle the vendee to retain the money which he had only thus promised to pay, yet it would entitle him, if he had actually paid it, to recover it back.
*182The case of Castleberry v. Pierce’s Adm’r, 5 Stew. & Por. 150, cited for the appellant, is not a case arising out of a verbal contract for the sale of land. That case turned upon the ground, that the vendor had rescinded the written contract, by entering upon, selling and conveying the land to a stranger, and had thereby entitled the vendee or his representative to an action for the recovery of the money paid before such rescission. Conceding the correctness of the decision in that case, yet we cannot see how the concession can aid the plaintiff in the case at bar; for, as we have above said, there is no evidence in this case of any act or declaration of the vendor or vendee, or of the heirs or representatives of either of them, before the commencement of this suit, which can amount to a rescission or abandonment of the contract. The suit brought by the vendor, before this action was commenced, may show an intention or offer on his part to rescind; but the one for rent was successfully resisted by the administrator of the vendee; and the other, that is, the one against the widow, was dismissed on her motion. The bringing of these suits may have been authorized by the terms of the verbal contract. But whether that be so or not, they were defended, and the vendor failed to recover in either of them; and nothing is proved which enables us to say that they amount to a rescission of the contract. — Waters v. Spencer, 22 Ala. 460; Harris v. Howland, 23 Ala. 648, referring to Walker v. Clay, 21 Ala. 797; Carter v. Walker, 2 Pick. 40.
We shall not decide whether the action of trespass to try titles, brought by the vendor, against the widow, after this suit was commenced, and the recovery therein by the vendor, amount to a rescission of the contract; for, if that be the effect of that suit and recovery, it cannot entitle the plaintiff to recover in this suit, because it occurred after this suit toas commenced.
Our conclusion is, that according to the principles settled in Cope v. Williams, supra, and in this same case when it was formerly in this court, the evidence does not show any right in the plaintiff to recover in the present action, and that there was no error in sustaining the demurrer to the evidence.
Judgment affirmed.