This is an appeal from the decision of the district court of Crawford county, in which the court gave a decree in favor of the complainant.
The grounds upon which the aid of a court of chancery is invoked, as alleged, are these: The complainant in the year 1841, had and held possession of a certain tract or parcel of the public land in the county of Crawford upon which there were improvements by fencing and ploughing, which he alleges were made by himself ; that in June of that year, the land sales for that district of country took place at Muskoda ; that the complainant not having the funds with which to enter the land thus held and improved, one Blihu Warner by Jared Warner his agent, offered to aid him therein; that the said Warner agreed to and with the complainant verbally, that he would enter the land in question, in the name Blihu Warner, the defendant, and that when the said complainant should thereafter return to him the principal and interest of the purchase money, the land should then become the property of the said complainant by proper conveyance; that about eleven months after the date of purchase or entry, he, in presence of a witness, made a tender of the principal and interest on the purchase money to Blihu Warner, whose money the said Jared professed to have used for the purchase; and that the *606said Elihu refused to receive the money so tendered, and to give a deed for said land. To enforce the conveyance of this land, this suit is brought.
The defendant, in his answer, wholly denies all the material allegations of the bill in relation to the alleged contract.
The agreement asserted in this case is a parol agreement, and can only be taken out of the statute of frauds by a part performance.
In the examination of the evidence in this case, we find it to consist, as we think, of loose and unconnected conversations, held at different times, on different occasions, with and before different persons, and in all respects uncertain, and in many, contradictory.
The first fact to be ascertained and settled in all cases of parol contracts for land, is the contract itself.
“ To entitle a party to take a case out of the statute, on the ground of part performance of the contract, he must make out, by clear and satisfactory proof, the existence of the contract as laid in the bill; and the act of part performance must be of the identical contract set up.” 1 Johns. Ch. 131; Sug. Vend. & Pur. 134; Story’s Eq. 67; 14 Vesey, 386. In this case there is no such clear and satisfactory proof of the existence of the contract here asserted, as 'the rule of law just, recited calls for, and upon that ground we think this case might safely rest in denial of the prayer of the bill for specific performance; but, as part performance is relied on, as an important feature in this case, it is well to notice in what that consists. Upon the examination we find that it be the fact as to possession ; that the complainant before the pretended contract, was in the possession of the land and remained therein afterward to the date of his bill. The chancellor in the case of Phillips v. Thompson, 1 Johns. Ch. 148, says: c‘ It is settled, that if a party sets up part performance, to take a parol agreement out of the statute, he must show acts unequivocally referring to and resulting from that agreement; such as the party would not have *607done, unless on account of that very agreement, and with a direct view to its performance, and the agreement set up must appear to be the same with the one partly performed. There must be no equivocation or uncertainty in the case. The ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed. These principles have been recognized in a series of decisions. Lacow v. Mertins, 3 Atk. 4; Nevin v. Belknap, 2 Johns. 587; Frame v. Dawson, 14 Vesey, 386; Climan v. Cook, 1 Sch. & Lef. 41; Lindsay v. Lynch, 2 id. 1. We do not think the act of remaining in possession such an act as is regarded as sufficient to prove part performance, and therefore as taking the case out of the statute.
However much the evidence in this case may lead to the suspicion that such an agreement as is here asserted, was made between the parties, and that for fraudulent purposes it was found convenient to deny it, nevertheless we are constrained to say, that neither is the agreement asserted, proved in that clear manner, nor the part performance of that character, called for by the law. We therefore are of opinion that the complainant is not entitled to the relief he asks for ; and that the district court erred in decreeing specific performance.
It is therefore adjudged and decreed, that the decree of the district court be reversed, and that the same be so certified with directions to dismiss the bill at complainant’ s cost. •
Dunn, C. J., dissented.