The plaintiff had a decree in the district court for the specific performance of an oral contract for the sale of real estate. The allegations of the petition relied upon to relieve the contract from the statute of frauds are, in substance, that the plaintiff entered into the possession of the lands with his family, and made valuable improvements thereon and paid a part of the purchase money. From the evidence it appears that the plaintiff was at one time the owner of the premises, which were heavily incumbered by mortgage. Being unable to meet the mortgage indebtedness, he sold the land to one Klosterman, but remained in possession as Klosterman’s tenant, and was so possessed *148when Klosterman sold the land to the defendant in February, 1899. The lease with Klosterman entitled the plaintiff to remain in possession as tenant during- that year. He was paying an annual rental of $640. By the contract of purchase from Klosterman, the defendant succeeded to the landlord’s right and became entitled to collect the rent for the year 1899.
After the purchase of the premises by the defendant, plaintiff remained in possession, and has paid as rent each year to the defendant the sum of $640 until 1904, Avith the exception of a single year, when, OAving to a partial failure of crops, the defendant waived the payment of $200 on the rental account. The defendant demanded an additional 25 cents an acre rental for the year 1904, and notified the plaintiff that he would demand a further increase for the year 1905. The rent for the year 1904 is unpaid. The plaintiff is still in possession of the premises, and on his behalf the testimony tends to prove that on the 4th day of November, 1899, the plaintiff and his wife were requested by Klosterman to go to the office of Hastings & Hall, in David City, and execute a quitclaim deed to the land in dispute, for the purpose of perfecting his title, which it was thought was defective because of a decree of the district court for Butler county, rendered after the original conveyance from the plaintiff and his wife to Kloster-man, subjecting the land to certain of the plaintiff’s debts; that Klosterman, the defendant, the plaintiff and his wife met at the office of Hastings & Hall, where the quitclaim deed was prepared; that plaintiff’s wife objected to signing the deed unless the defendant would sign a contract agreeing to reconvey the land to the plaintiff Avhen the plaintiff might be able to pay for it; that the defendant said no such contract was necessary, that he Avould re-convey the land to plaintiff at any time within five, ten or fifteen years upon payment to him by the plaintiff of Avhat he had in the land; that he Avanted his money and not the land; that the quitclaim deed was thereupon signed and delivered, On behalf of the defendant there is evidence *149tending to prove that in April, 1899, the plaintiff and defendant had a conversation in which the plaintiff expressed a desire to purchase the land; that the defendant told him he might purchase the land at any time within five years from that date for what the land was worth; that he so informed the plaintiff’s wife when the quitclaim deed was executed, and that no other or different agreement was ever made. The defendant’s first wife was a sister of the plaintiff, and for many years they had enjoyed friendly and confidential relations.. The defendant has appealed from the decree, and contends that the decree is not supported by the law and the facts.
This contention seems to be well taken. There is no explanation in the evidence of the plaintiff’s possession of the premises other than his possession as a tenant, and, having been in possession as a tenant at the time when the plaintiff alleges the contract of purchase was made, the presumption is that he continued in possession as a tenant. Bigler v. Baker, 40 Neb. 325. Continued possession by a tenant is not such a part performance of a verbal contract for the purchase of land as to take the case out of the statute of frauds. Possession, to have such an effect, must be clearly shown to refer to and result from the contract, and not the lease. Bigler v. Baker, supra; Lewis v. North, 62 Neb. 552. There is a failure to prove any payments on account of the contract of purchase. The only payments made by the plaintiff were for rent, and the trial court in effect so found. The defendant paid $8,106.25 for the land, and it is admitted that he subsequently paid taxes amounting to $334.83, besides paying for some improvements and repairs. The decree provides for a conveyance upon the payment of $8,156.25 purchase money, $640 rent for the year 1904, and certain items of personal indebtedness not in any manner involved in the transactions concerning the land. It was proved at the trial, without controversy, that the land at that time was worth $16,000. The plaintiff testified that each year after the alleged contract of purchase he planted trees on the farm; *150as affecting bis claim of right, however, it is significant that he did the same thing each year while he was the tenant of Klosterman. He repaired fences and made certain other improvements, including a comcrib of about the value of $250.. The defendant testified that he was requested to build the corncrib, but declined to do so; that he gave the plaintiff permission to build the crib, with the understanding that he might move it at the termination of his lease or that he would buy it, as the plaintiff might desire.
Construing the evidence in the light most favorable to the plaintiff, if falls short of proving any performance of the contract on his part such as the law requires to take an oral contract for the sale of lands out of the statute of frauds, and we recommend that the decree of the district court be reversed and the cause dismissed.
Duffie and Albert, CC., concur.By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed and the cause dismissed.
Reversed.