The complaint in this action alleges; title in the appellant to the piece of ground in controversy from and after the 6th day of October, 1811; a wrongful and unlawful possession of the same by the respondents since the 9th day of June, 1881; that, on the 9th day of June, 1881, appellant demanded the possession thereof' of the said Dodson, which was, and still is, refused; that, since about the 20th day of June, 1881, the' respondent Nevitt, in conjunction with Dodson, has been in the-wrongful and unlawful possession of the premises; and that, on the 24th day of August, 1881, the appellant demanded possession of Nevitt also, which was, and still is, by him refused; that respondents still continue to withhold the possession of the premises from the appellant..
There were separate answers by the respondents, each answer denying specifically each of the above allegations of the complaint, except that of the demand of the possession of the premises, and the refusal thereof by each, of the respondents. And they allege affirmatively that, respondent Dodson, as the duly appointed and qualified executor of the last will and testament of Thomas B. Warfield, who died on or about the 13th day-of February, 1881, took possession and charge of the above premises-as a part of the property of the estate of said Warfield, deceased, and has continued to control and manage the-*585same as such executor, and that he has no other interest of any kind whatever in the premises; that Thomas B. Warfield, in his life-time, and respondent Dodson, as executor, etc., have been in the open, notorious and uninterrupted adverse possession of the premises for five years immediately preceding the bringing of this action; and that the right of action of the appellant is barred by the statute of limitations. The answer of Nevitt specifically denies the allegations of the complaint, and avers that, since the 20th of June, 1881, he has been in possession of the premises only as the tenant of respondent Dodson, acting executor, etc., of Thomas B„ Warfield, deceased.
The replication, replying to answer of Dodson, denies that he took possession or charge of the premises as part of the estate of Thomas B. Warfield, deceased, or continues to control or manage the same as such executory and also denies that the right of action is barred by the statute of limitations.
The appellant alleges affirmatively that in May, 1812, the said Warfield entered into a parol contract with appellant for the purchase of the premises, by which he agreed to build a brick wall for appellant, whenever demanded by him, upon and along the western boundary line of the premises, sufficient to serve “ for the eastern wall of a building which appellant then intended to erect, and did subsequently erect,” upon the adjoining premises on the west; and that no right or title should accrue to the said premises to the said Warfield until the performance of this agreement by him; in consideration whereof the-appellant agreed that, upon the performance by Warfield of his promise, the appellant would sell and convey to him the premises in controversy; that Warfield occupied the premises by virtue of this agreement, and not otherwise; that in April, 1880, and at other times thereafter, appellant demanded of Warfield the performance of his part of the agreement, which Warfield never fulfilled.
*586The transcript contains a full statement of the evidence, which establishes the following facts: That the appellant obtained the title in fee simple to the premises in controversy on the 6th day of October, 1871, at and prior to the purchase of the property by the appellant. Warfield had been the tenant of the premises to Tracy, who was the appellant’s grantor. That Warfield admitted to a witness demanding rent of him, as the attorney of Tracy, for a house which then stood on the premises and was occupied by Warfield (the witness thinks in 1872), “that he would pay no rent to Tracy, and that Lamme was the person to whom he was to pay rent;” “that he was not obliged to pay rent for that year to Tracy, but to Lamme.” That there was a parol agreement between the appellant and Warfield that he, Warfield, would erect a brick wall for the appellant on the west side of the premises in controversy, upon the completion- of which the appellant was to sell him the premises and make him a conveyance for the same. That about the year 1880 the appellant demanded of Warfield the fulfilment of the above agreement. That Warfield never fulfilled the agreement with appellant, nor performed any pai't thereof. That Dodson is the duly appointed and qualified executor of the last will and testament of Thomas B. Warfield. That appellant has presented no claim or demand against the estate of said Warfield to the executor. That in 1872 the said Warfield tore down and removed the building then on the premises, which had been thereon in 1871, and erected another house on the ground. That Warfield remained in possession of the premises until his death, viz., February 13, 1881. That said executor, as such, took possession of the premises and rented the same to Nevitt. That the premises were appraised as a part of the property of the estate of Thomas B. Warfield, on January 21, 1881, and are mentioned in an inventory of the estate.
After hearing the testimony, the court, on its own *587motion, instructed the jury to find a verdict in favor of the respondent. The jury returned a verdict for respondent accordingly, and judgment was rendered thereon.
We will consider first the reasons urged by the respondents to sustain this action of the court. It is claimed that ■“the plaintiff in ejectment must show a right to the possession of the property, and proof of the legal title is not sufficient.” The cases cited by the respondents do not maintain this position. It is a fundamental principle of the law in relation to real estate, that “when there is no adverse holding, the possession follows the property in the land, and is in him who has the title.” Washburn on Real Prop. vol. 3, p. 118, citing Holly v. Hawley, 39 Vermont. The law of this territory provides that “in every action for the recovery of real property, or the possession thereof, the person establishing a legal title to property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under, and in subordination to, the legal title, unless it appears that the property has been held and possessed adversely to such legal title for five years before the commencement of the action.” The true principle, therefore, is that he who has the legal title to real property is presumed to have the right to the possession thereof until better right is shown.
It is claimed by the respondent that the action of the appellant was brought prematurely for the reason that, having commenced no action against Warfield, the executor, Dodson, had obtained possession of the property under the laws of the territory, and was entitled to continue in such possession until the estate was settled,, referring to section 121 of the Probate Practice Act. But to assert that the premises in controversy are a part of the •«estate of Warfield, deceased, is itself begging the question at issue. The mere fact that an executor claims that property as a part of decedent’s estate, and includes it in *588Ms inventory of such estate, does not make it so in fact. The appellant alleges this property to be his own, and. therefore that it is not any part of the property of the-estate of Warfield. To say that property, by being mentioned in the inventory of a decedent’s estate taken possession of by an executor, and claimed as part thereof" by him, is thereby conclusively presumed to be a part of" such estate until the same is settled by an executor or administrator, would be productive of serious mischief, and we will not place such a construction upon this section, of the probate act.
The cases referred to by respondents to maintain the-position (Meeks v. Kirby, 47 Cal. 168, and Chapman v. Hollister, 42 Cal. 462) are only to the effect that an heir or devisee, or their grantees, are not entitled to the possession of their share of the decedent’s estate, and cannot maintain ejectment therefor until the administration, of the estate is closed, and were rendered in view of the-same or similar provisions of the Probate Practice Act of that state. The reasons are evident; for in addition to» the express provisions of "the statute, to permit the heirs- or devisees to take possession of the estate before its settlement, “would tend to confusion, delay and embarrassment in the administration.” But we think that neither the law itself, nor the reasons above given, apply to a. case where the claim is by one not bearing such a relation to the estate, and who claims the property as his-own, and impliedly denies that it is part of decedent’s estate. The respondents argue that it was necessary for appellant to aver and prove that he had presented, a claim for the premises to the executor in order to-maintain his action, by reason of the provisions of the; law, “that no holder of any claim against an estate shall, maintain any action thereon unless the claim is first presented to the executor.” Sec. 167, Probate Practice Act,. Eev. Stat. And the kind of claim intended by this provision is doubtless one which exists by reason of the; *5893iolder of such claim being a creditor of the estate. The •entire article of which this chapter is part, “Article 1, •chapter 6, of the Probate Practice Act,” treats of this •class of claims, and it is a claim of this character arising upon a contract express or implied, and not a claim of "title to real estate, which is intended by this provision.
The respondents attempt to maintain that as the appellant “in his complaint relies wholly upon his legal title,” -he cannot rely upon an equitable title set forth in his replication. What relation the allegation contained in the replication, and evidence thereof, bear to the case, we will •consider hereafter.
The complaint states a good cause of action by averring the legal title to be in himself, the appellant. The answer denies the legal title, and sets up the statute of limitations. The replication denies the affirmative allegations of the answer, and alleges the parol agreement affirmatively, in reply to the new matter set up in the answer. This is intended to be matter in avoidance, and is deemed “ controverted on the trial by the adverse party.” Sections 107 and 239 of the Code of Civil Procedure, R. S. pp. -59-83. The parol agreement set forth in the replication is made in reply to the claim of the statute of limitations, •contained in the answer. It is intended to rebut the allegation of the answer, that the possession of the respond•ents was adverse. It is deemed to be denied without further pleading. The appellant by setting up this .matter does not assume to rely upon this allegation, or abandon his claim to recover upon the legal title. Such matter, set forth in a replication rendered necessary by the answer, is not a departure in pleading. It is claimed by respondents that “if in ejectment the answer is a general denial, the defendant may prove any fact tending to show that plaintiff had no right of action when the action was commenced,” and that it was not necessary for Dodson to set up the character of the possession by Warfield under Lamme. As a legal proposition this is *590true in relation to any facts which respondents might have offered to prove, tending to disprove the legal title of the appellant, or tending to establish a better legal title in themselves. But the respondents did not allege any equitable defense, relying wholly upon their denial of the legal title of the appellant and the statute of limitations, and therefore could not offer proof tending to establish an equitable defense upon the trial. The rule is well established and recognized by the decisions of this court, that if a defendant desires to avail himself of his equitable title, he should plead it and ask the appropriate relief. When he has not done so, he is not entitled to give it in evidence. Kenyon v. Quinn, 41 Cal. 325; Cadiz v. Major, 33 Cal. 288; Reece v. Roush, 2 Mont. 590.
The respondents contend that, “ after the failure of Warfield to pay for the wall referred to, and after a demand therefor, Lamme had a claim for the cost of the building of such wall against Warfield, and Dodson as such executor, and should have prosecuted the same for payment.” The allegations may be briefly stated thus: A legal title alleged in the complaint, which is denied in the answer, and the statute of limitations averred by reason of an adverse possession which has its inception from a parol agreement not alleged in the answer, but only in the replication, and which the law presumes the respondents to deny.
We do not think that in this case, in this condition of the pleadings, the respondents can claim that the appellant should be required to recognize an agreement which they do not allege in the answer, and which they are presumed to deny. We will consider this claim further on in this opinion.
It is claimed by respondents that “the removal of the log house by Warfield, and the erection of a building by Warfield on the land, constitutes under the circumstances an adverse possession within the meaning of the statutes of this territory.”
*591The circumstances of the case cited to maintain this position, viz., Nat Mining Co. v. Power, 3 Mont. 344, are in no wise similar to the circumstances of the case at bar. In that case the person claiming title by adverse possession had purchased from a stranger a dwelling-house and other buildings which were upon the land of the plaintiff, and inclosed the buildings with a good and substantial fence, and resided on the tract thus inclosed for about four years. Under the laws of the territory at that time, three years’ adverse possession established a title. The plaintiff’s legal title was obtained in 1869. It was established on the trial that the defendant always claimed to be the owner of the property, and that the agent of the plaintiff did not know that she made this claim, although he knew that she built the fence and occupied the premises for the above period. It will be observed that the possession of the defendant had no connection with plaintiff’s title and was hostile in its origin, continuing to be so during the entire above-named period. In the case at bar, even granting that the parol agreement had been properly alleged and proved by War-field, yet his possession was not hostile in its inception, for he was the tenant of appellant when the latter obtained the legal title, and by the parol agreement he recognized the appellant’s title, and must necessarily have claimed under it and not- in hostility thereto. The evidence does not disclose whether or not Warfield removed the house and built another, before or after the parol agreement, or with or without the consent of the appellant. The circumstances of the case repel the presumption that these acts of Warfield were done in view of asserting or holding advei’se possession of the premises. The question of adverse possession is one of intention. The intention must be discovered from all the circumstances of the case. This brings us to the question as to whether or not the possession of Warfield was adverse. The parol agreement was void under the statute of frauds *592unless there was such a delivery of possession, or part performance, as took it out of the statute. There was no such delivery of possession in this case. Warfield was in possession of the premises when the parol agreement was made, and there was no delivery to or assumption of possession by Warfield under the agreement. Browne ■on the Statute of Frauds, under the head of “Yerbal ■contracts enforced in equity,” sections 472, 476, 477, contains the following language: “In all cases in which possession, either as delivered by the vendor or as assumed by the purchaser, is relied upon, it must appear to be a notorious and exclusive possession of the land claimed and to have been delivered or assumed in pursuance of the contract alleged.” “The possession must appear to have been delivered or assumed in pursuance of the contract alleged. Thus it is abundantly settled, that if one who is already in possession of land as tenant verbally contract with the owner for a new term, -his merely continuing in possession after the making of the alleged contract is not an act of taking possession within the meaning of the rule so as to justify a decree for a lease according to the'contract.” “The same reasoning applies, of course, when the contract set up is the sale of the estate to the defendant by the owner of the fee. And in like manner, when the tenant’s old term has expired and he holds over, such holding will not be decreed an act of part performance of an alleged contract for the purchase of the estate, but is more naturally referable to his landlord’s permission to continue in possession upon the terms of the old holding.”
In the case of Jones v. Peterman, 3 Serg. & R. 543, it was held that “possession had before a parol agreement of a lease for seven years, and continued afterwards, is of too doubtful a nature to be construed as part performance, and to take the case out of the act for the prevention of frauds and perjuries.” In rendering the opinion, Tilghman, C. J., said: “A lessee who contin■ *593ues in possession after the expiration of his lease may be supposed to retain the possession by permission of the landlord. It would not be sufficient evidence of part performance of agreement to purchase' the land, or of a new lease for more than a year.” “In the present case, it is stated that Perkins, under whom defendants claim, was in possession prior to the agreement now sought to be established. Possession, therefore, was not delivered in pursuance of the agreement, and is not to be considered as part performance.” Gibson, J., rendering an opinion in the same case, said: “It is fully settled that a bare holding over is not a possession under a new agreement to take a case out of the statute.”
There was no part performance of the parol agreement which would take it out of the statute of frauds. It is perhaps needless to say that the evidence in relation to 'Warfield’s having had estimates made of the cost of the wall is not a part performance of the parol agreement. The respondents do not claim anything in the argument by reason of the tearing down of the log building and erecting another, of which there is a bare mention in the testimony of Dodson, as witness for respondents, except as these acts tended to show adverse possession. They are not claimed as valuable improvements. There is no evidence which would show that they were of such a character, or that it would work a fraud upon the respondents, if the appellant failed to perform the agreement. Even if such had been proved to be the case, before equity would decree a specific performance of the contract on the ground of valuable improvements, War-field or the respondents must first have performed, or offered to perform, their part of the agreement. The parol agreement was void under the statute of frauds. Sec. 160 of the General Laws, Rev. Stat. p. 435.
The agreement being void, even if properly averred and proved, was utterly powerless to set in motion the statute of limitations. Being in possession as tenant *594when the appellant acquired the legal title, and having been the tenant also of the appellant, his possession after the parol agreement was not an adverse or hostile possession, for in such a case he will be presumed to retain possession by permission of his landlord. The evidence shows that Warfield admitted and recognized the title of the appellant, and expected to acquire it only by a compliance with the agreement.
“ Where one entered in subservience to the title of the real owner there must be a clear, positive and continued disclaimer and disavowal of the title under which he entered and an assertion of an adverse right brought home to the owner, in order to lay a foundation for the operation of the statute of limitations.” 3 Washburn on Eeal Property, sec. 23. But even granting that the agreement was a valid one and properly alleged and proved, still the possession was not adverse until the condition precedent was performed. The authorities upon this point are clear and conclusive. In The Matter of the Department of Parks, 73 N. Y. 560, Earl, J., says: “It is too well settled to be disputed that one who enters upon land under a mere agreement to purchase does not hold adversely as against the vendor until his agreement has been fully performed, so that he has become entitled to a conveyance.”
Angelí on Limitations, sec. 406, contains the following language: “ But the case is different when one agrees to-buy and another to sell land, and no consideration is paid, and the party contracting to buy enters into possession, inasmuch as the fair inference there is that the entry and possession are in subordination to the title of the party contracting to sell until the stipulated payment is made. Such a case, therefore, constitutes a tenancy at will.”
In Woods et al. v. Dille et al. 11 Ohio, 455, it was held that “ possession obtained under a contract of purchase does not become adverse while the contract is acted upon and payment made.” There is stronger reason to sup*595port this proposition when the contract was not acted upon and no attempt made to comply therewith.
In Brown v. King, 5 Metcalf, 173, Wilde, J., said: “ Wheraone agreed to buy and another to sell land, and no consideration was paid and no deed given, and the buyer entered into possession, the fair inference is that the entry and possession are not adverse and a disseizin, but by consent of the owner and in subordination to his title until payment is made and a deed given, and constitutes a tenancy at will. ”
Under the circumstances of this case, granting the contract to have been properly pleaded and a valid one, Warfield must be presumed to have held possession by permission of the appellant, and in such a case, “without the reservation of any rent, he is by implication of law a tenant at will.” Larned v. Hudson, 60 N. Y. 102.
Therefore under any view of the case the possession of Warfield and the respondents was not adverse, and the allegation that the right of action is barred by the statute of limitations is not sustained. For the reason before given, that the respondents are presumed to deny the parol agreement, and also for the reason that the same is void, the appellant cannot maintain an action against the executor for the price of the wall. When an agreement is void, one of the parties cannot perform the obligation of the other, so as to render him liable therefor. This would be to give force and vitality to a contract which is absolutely void. It would be subversive of the entire theory of contracts, and void on the ground of fraud.
Under sections 239 and 211 of the Code of Civil Procedure (R. S. p. 83), the question of adverse possession should have been left to the jury under proper instructions.
The judgment is reversed and the cause remanded for a new trial.
Judgment reversed.