I concur in the judgment, but I do not fully agree with all the reasons advanced by Justice Lennon. The rule is that the possession of land by the vendee, under an oral contract, in order to constitute part performance and render the contract enforceable, must be such as would make him liable for trespass, if he could not justify his possession except by the void oral contract of sale. This rule was adopted in equity when the common-law forms of action for trespass were in use. Under the common law, one who entered on land through his tenant to whom he had let the land for a term was liable, after recovery in ejectment by the true owner, to an action of trespass for mesne profits, and the fact that he had not personally entered on the land would not excuse him. Nor would it excuse him in an action of trespass for breaking and entering, if he had leased the land and authorized his tenant to enter thereunder. Therefore, the fact that one was in possession by his tenant would make him liable for trespass and would sufficiently answer that part of the equity rule in actions for specific performance. In this case both Hambey and Wood would have been liable to Wise for mesne profits if the sale to Hambey and Wood's possession under the lease could not have protected them.
It is clear also that this should be the rule. There are many cases, as of property built for rental purposes, where the only possession ever taken or contemplated by the parties to a sale is a possession accomplished by the attornment of the tenant in possession to the new owner. It has never been supposed that possession of such property, when so taken, could not constitute a sufficient part performance. In so far as the main opinion is inconsistent with the above I do not agree with it. *Page 293