The record, in this case, contains the whole of the testimony, which was introduced in the ¡Court below, whether it be applicable to any point made by the bill of exceptions, or not. This is incumbering the case with much useless matter, and .greatly enhancing the costs. No more of the evidence should be inserted in the reeord, than is necessary, plainly and distinctly to show its application to the opinions excepted to.
It appears, from the record, that a verbal contract, was made between the parties, in August, 1826, by which the plaintiff in error agreed to purchase of the defendant, three half quarter sections of land, lying adjoining, at the price of one thousand dollars — one half to be paid on the 25th December, 1826, the other half on the 25th December, 1827; that, subsequently, Meredith executed his two notes, payable on those days, for four hundred dollars each, and recei*62ved titles, to two of the half quarter sections, of which he took actual possession. He never did actually occupy, or exercise acts of ownership, upon the third half quarter.
The suit is brought to recover the two hundred dollars, being the sum, which, in addition to that for which Meredith-gave his notes, makes out the thousand dollars, first agreed to be given, for the, whole,of the land. No title has ever been executed or tendered by Naish, to Meredith.
The counsel for Meredith, upon the trial bqlow, requested the Court to charge the jury, that to au-thorise Naish to recover, he must prove actual possession of the half quarter section, not conveyed— which was refused; but, on the contrary, the jury were told by the Court, that if the contract (of sale,) was entire, actual possession of the two half quarters, was actual possession of the other, also. ,,.
This charge was’ erroneous. To authorise,a recovery of the purchase money of lands, sold by verbal contract, according to the opinion, given by this Court, in this case, when it was here before, there must have been actual possession and use, of each parcel of the land sold, to which no title was made.
That opinion proceeded upon the ground,'that Chancery would decree a specific performance of the contract. But surely no such decree would be made, when nothing had been done by the purchaser, to improve the condition of the land — nor, even an entry made by him, upon it. This is not a case, in which the doctrine of constructive possession has any application. , ( , .
We do not feel authorised even to question the correctness of a decision, when tfie case in which it *63was made, is brought a second time before us, therefore no examination is attempted of the authorities, which, it is insisted, conflict with the opinion given in this case, in 1830.
The counsel for Meredith also moved the Court, to chargé the jury, that if they believed, from the evidence, that five hundred dollars was to be paid by Meredith, to Naish, oh the 25th December, 1826, and five hundred on the 25th December, Í827, no-action would lie for the sum not due before 25th December, ' 1827, until that day had passed,-— •“ Whereupon the Court charged the jury, that the plaintiff’s right of action accrued, whenever the defendant refused to comply with his contract.”
The' suit was brought in February, 1827. It must be understood, that the Court refused to give the charge ¿sk’ed, which is last referred to. The reason for this refusal can not be perceived.. There was no express agreement proved, that Meredith shoiild execute his notes or give security for the one thousand dollars; if he had, and failed to do so,, it is probable that the suit should have been brought on that contract, averring the breach; but this action is for the two hundred dollars, as so much money due on the agreement for the land, when at least a part of it is shown, by the declaration, not to have been due until some time after.
There is believed to have been error in this opinion of the Court; Under such a contract, no suit " can be sustained without the tender of a title by the vendor, which does not appear to have been made.i The judgmént is reversed, and the cause remanded.