The judgment of the court was pronounced by
Rost, J.The plaintiff alleges that he is the owner of eight superficial acres of land, which the defendants illegally withhold from him. He asks to be put in possession of the land, and prays for damages.
*526One of the defendants has disclaimed all right to the land. The answer of ^ie °^el' is that, he is in possession, since 1845, with the knowledge and consent of the plaintiff; that the said plaintiff’ made a verbal contract with him, to convey to him sixty acres of land, including the eight acres in controversy, as soon as the mortgage then existing upon said, land was raised, and that he went into possession under that agreement; and that the plaintiff fraudulently refuses to execute said contract. The defendant prays that the plaintiff be adjudged to execute this contract, and to pay him damages. The case was tried before a jury, and judgment rendered on the verdict, in favor of the plaintiff, for the land, and $48 damages. The defendant appealed.
The ground on which the appellant mainly relies for the reversal of the judgment is that, this is a possessory action; and that, as he had been in actual possession more than one year when it was commenced, the judgment should have been in his favor.
Whether the action be petitory, or, as alleged, possessory, is immaterial, under the pleas set'up. The defendant has alleged in his answer, and has proved on the trial, that he went into possession of the land in controversy with the consent and authorization of the plaintiff, and holds under him. He did not, therefore, possess as owner, and could not have maintained a possessory action.
In the case of Marionneaux v. Edwards, 4 An. 103, we held that no action, either for a specific performance, or for damages, would lie on a verbal contract to sell land. This decision, with which we have no reason to be dissatisfied, is conclusive against the defendant, so far as his claims for the land and for damages are involved.
The plaintiff has claimed damages for the wrongful detention of his land by the defendant; the jury allowed $48 ; and, after perusing the evidence, we are unable to say that they erred. Judgment affirmed.