delivered the opinion of the court.
The law was correctly stated by the plaintiff that the cancellation or destruction of a deed conveying land will not revest the title of the alienee in the alienor, although it may be done by mutual consent and with a view to that object. But we do not see how this principle affects the defendant. Admitting that the legal title was in the plaintiff, the pleadings and evidence in the cause show that the defendant relied on the defence that there was such a part performance of a parol agreement respecting the sale of the land in controversy, as will entitle him to a judgment in this aetion. Law and equity being now blended, an equitable title arising out of a contract for the sale of land, is a defence to an action instituted to recover the possession of the land, the subject of the contract.
The instruction given by the court that there was no evidence before the jury that the plaintiff agreed to the cancellation of the deed by the defendant to him, only impliedly affected the point in controversy, as the destruction of the deed, without the consent of the plaintiff, would only be a circumstance showing that he made no contract respecting the land. But the error of the instruction is, that it took the ease from the jury. The jury was sworn to try the issue, and there were facts and circumstances from which they might have found the defence set up by the defendant. The jury should have been directed that, if there was a contract for the sale of the land, and the purchase money was paid, and possession given up or delivered in pursuance to it, they ought to find for the defendant.
The views here presented are equally applicable, whether this be regarded as a suit to recover the possession of the land in dispute, or to compel a delivery of the title deed upon the payment of the money to secure which the title paper was left or deposited with the defendant.
The other judges concurring,the judgment will be reversed and the cause remanded.