On Petition fob Rehearing.
Myers, J.6. On petition for rehearing the appellants suggest that in our opinion rendered upon the original hearing we erroneously held the complaint for specific performance faulty for want of any showing of readiness or willingness on the part of the plaintiffs to carry out the contract on their part, and counsel appear to regard such a requirement as contrary to the decision in Riley v. *594Walker (1893), 6 Ind. App. 622. That case did not escape our attention on the former hearing. It was an action at law for the recovery of damages for breach of a contract wherein it appeared that the refusal of the defendant rendered it impossible for the plaintiff further to perform on his part, and excused him from such performance; while in the case at bar, by the paragraph in question, it is sought to set forth grounds for a suit in equity for specific performance of an oral contract for the conveyance of an interest in land, wherein it appears that if, in other respects, a case for specific performance were shown, it would be inequitable to require the conveyance from the defendant without a conveyance of other interests in real estate by the plaintiffs to the defendants. In addition to our citations in the original opinion upon this question, we refer to Pomeroy, Contracts (2d ed.), §§326, 360, et seq.
10. Counsel also question our statement that the complaint does not show such a part performance as is required to take a case for specific performance out of the statute. We of course agree that, when tenants in common make parol partition, and each takes exclusive possession of the share so allotted to him, or where there is a family arrangement by parol, carried out by such exclusive possession by the several parties to it, the statute of frauds is not applicable; but we do not find such a partition shown in this complaint, which, by its prayer, as well as otherwise, purports to be a suit to compel defendant Agnes Garrick to convey an interest in land pursuant to a parol agreement to make such conveyance in exchange for other interests in land. The fact upon which reliance is placed to take the case at bar out of the statute is the supposed taking of possession under the contract. It must be remembered that appellants sued as vendees, not as vendors. They seek a conveyance of Mrs. Garrick’s interest to themselves. They claim to have delivered possession of their own shares of the land to appellee Agnes Garrick for the period of her life; *595but wliat interest or share in the land, belonging to said Agnes had been delivered to them or taken possession of by them?
11. Where the vendee sues for specific performance, relying upon possession to take the case out of the statute, he must show a possession of the land or interest therein delivered to him by the vendor pursuant to the contract under which he seeks a conveyance. Pomeroy, Contracts (2d ed.), §118, et seq.
Petition for rehearing is overruled.