The opinion of the court was delivered by
Brewer, J.:1. Parol contracts for sale of lands. 2. Delivery of possession; proof of contract. This was an action to compel a specific performance of a parol contract to sell land. Payment of about two-thirds of-the purchase-money, and tender of the remaining, .possession, and the making of valuable and lasting improvements since the contract, with the knowledge of the vendor, were the grounds upon which a decree was asked. The district court found the facts as alleged, and rendered a decree accordingly. Plaintiffs .in error, defendants below, allege in error, first, that no- specific performance should have been decreed, because, at the time of the parol contract the vendee was already in possession. In other words, delivery of possession is' essential to the validity of a parol contract to sell land, and delivery being impossible where possession is already held, a parol contract to sell to one already in possession can never be enforced. -We do not so understand the law. A parol contract to sell land, as a contract, is always void, not because of any immorality or , , .. _ it illegality, it is true, but because the law does not recognize such method of transferring title to real estate. Part performance takes such a case out of the statute of frauds, not because it furnishes any-greater proof of the contract, or because it makes- the contract any stronger, but because it would be intolerable in equity for the owner of a tract of land to knowingly suffer another to invest time, labor, and money on that land, upon the faith of a contract which did not exist. Part performance, working injury to one party, unless followed by full performance, is necessary to enforce performance by the other. Equity bases its right to interfere upon the ground that without its interference injury and *423wrong will result, and not on the ground that it is morally right that men should perform their contracts. “ The ground of the relief in chancery,” says Chancellor Kent, in Parkhurst v. Van Cortland, 1 Johns. Ch. 274, “is the fraud in permitting a parol agreement to be partly executed, and in leading a party to expend money in the melioration of the estate, and then to withdravf from the performance of the contract.” In 1 Leading Cases in Eq., 723, the editor thus lays down the law: “A party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed.” Also, see cases cited by the editor. It will readily be seen from this what part performance will take the case out of the statute. Payment of the purchase-money will not, for the money can be recovered by action. Delivery of possession will, for without the contract the party entering will be a trespasser, and, if the vendor be permitted to deny the sale, liable to an action of trespass. A fortiori will delivery of possession, and the making of lasting and valuable improvements with the knowledge of the vendor. "With equal reason should payment of the purchase-money and the making of lasting and valuable improvements with like knowledge, be sufficient to uphold the sale. Such a case comes clearly within the principles laid down. The vendee is led on “to expend money in the melioration of the estate,” and then told that he has no interest in such estate. One needs.no precedent to justify him in asserting this to be a fraud. Delivery of possession is often a strong circumstance to prove the contract, for an owner would rarely deliver possession of his real estate to a stranger except under some contract. But the contract may be proved without that circumstance. Here, it is found. The manner in which possession is held often discloses under what claim of title it is held. A change in the manner of holding may indicate a change in the claim of title almost as clearly as a delivery of possession. And an acquiescence by a previous owner and landlord, in the manner of holding, *424may show his recognition of a sale. The change ‘in the manner of holding should be such as is referable only to the fact of a sale, and not merely to a continuance of the tenancy. Browne in his work on the Statute of Frauds, §478, says: “The rule which controls all cases where possession is relied upon is, that merely taking or holding possession is of itself nothing. The question is, quo animo it is taken, or held; and this is not allowed to be answered by parol proof of the agreement between the parties. But in cases Avhere a tenant continues in possession under an alleged agreement for a new tenancy, it is answered by proof of any act on his own part done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of parties.” A party in possession loses all the benefit of a delivery of possession as evidence of the alleged parol contract, and may therefore be put to clearer proof thereof; but if it is clearly established aliunde, he may have that contract enforced. 1 Leading Cases in Eq., 724-726; Mahon v. Baker, 26 Penn. St., 519; Brown v. Jones, 46 Barb., 400; Spear v. Owendorf, 26 Md., 37.
3. Homestead; alienation. Again, plaintiffs in error claim .that this land was a part of their homestead, and that therefore under the constitutional provision concerning homesteads (§ 9, art. 15, const, of Kansas,) a parol contract to sell it could not be enforced. The district court found that the defendants Edwards and his wife “jointly entered into and made” this parol agreement. Tire testimony abundantly supported this finding. The plaintiff swore positively to the making of the agreement by both the defendants, and was corroborated as to Samuel E. Edwards by many witnesses. Mr. Edwards while on the stand was not questioned as to the .contract, and Mrs. Edwards was not a witness. We need not however investigate the question here suggested, for in our opinion this- land never formed a part of the defendant’s homestead. The tract was one of about ten acres situated in the southeast comer of a forty-acre tract, and was separated from the remaining portion by the road-bed of the Kansas Pacific *425railroad. In November 1865 the forty acres belonged to one S. R. Hungerford. At that time the plaintiff occupied this ten-acre tract as tenant-at-will of Hungerford. During that month Edwards bought the forty acres, and in February 1866 moved onto that portion of the forty lying north of the railroad track. During the same month he and his wife made the parol contract with plaintiff. He never was in the actual occupation of the ten acres in dispute. True, he had but the forty acres, and intended when he bought it to make the whole tract his homestead. At least that is his testimony, and there being no counter evidence it must be taken as proved, though the district court declined to find upon that fact, probably because it was thought immaterial. The possession of the plaintiff, commencing before the purchase by defendants, continued unquestioned, and with the assent of defendants, until after the commencement of this suit in November, 1869. Under these circumstances we do not think this ten-acre tract ever properly became a part of the defendants’ homestead. We know the spirit which animates the people of Kansas, the makers of our constitution and laws, on this homestead question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent constitutional or statutory provisions on the subject. We know that the purchase of a homestead, and the removal onto it, cannot be made momentarily cotemporaneous. It takes time, for a party in possession to move out, and then more- time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may' secure ah initio a- homestead inviolability. Yet occupation is nevertheless an essential element to secure this inviolability. “A homestead * * * occupied as a residence by the family,” etc., is the *426language of both constitution and statute. Here the defendants never occupied this ten-acre tract, but finding it in the* possession of a third party, left it in her possession, without questioning her right, for four years; and finding her a tenant, made her a vendee during the same month in which they commenced their occupation of the remainder of the forty acres. To hold that this ten acres ever fell within the terms, “occupied as a residence by the family” of Edwards, seems-to us trifling with both law and language.
4. Desoriptio11 sufficiency of. It is further objected that the description is insufficient. It is described as “ten acres of land situate on the south side of the Kansas Pacific railway track, being the southeast corner of the southeast quarter of the S.W.£ of sec. 26, X. 10, of Range 21, Leavenworth county, Kansas.” It appears from the finding of the court that south of' the railway, and within said forty-acre tract, were “ten acres- and a small fraction of an acre.” Whether this fraction was so small as to come within the rule, de minimis non curcif lex, the finding does not disclose. Turning to the testimony, and the- party who surveyed the land testified, that there was “about ten acres south of the railway, but could not tell the exact amount without his notes.” The plaintiff testified that defendants sold her the land lying south of the railway as ten acres. We think there will be no difficulty in determining what land is covered by the decree.
These being the only important questions in the case, the judgment of the district court must be affirmed.
Valentine, J., concurring. Kingman, C. J., dissenting.