Meredith v. Naish , 3 Stew. 207 ( 1830 )

By JUDGE TAYLOIl.

There is no averment in the declaration that Meredith had been put in possession of the land by Naish, or that he had ever had the possession by virtue of the purchase; it is true that the second count-in describing the agreement, states that the plaintiff bargained, sold and delivered the land to the defendant, but this general description of the contract can, by no legal rule, be admitted to embrace an averment of a substantive fact, without which there cannot be a recovery.

A special averment that the defendant enjoyed the possession of the land under the contract, and proof of that facl, in addition to tho other averments contained in the declaration, would shew such a part performance of the contract as would authorise a Court of Chancery to enforce it specifically, and would therefore entitle the plaintiff to a recovery.

In the case of Allen v. Booker,^e it was determined that payment of part or even tho whole of the purchase money. is not such a part performance as to take a ease out of the statute. If the Court should' under any combination of be induced to change that_decision, this case does not such circumstances.

The judgment must be reversed; but that the plaintiff may have an opportunity so to amend his declaration as to entitle him to a recovery, if the facts will authorize it, the cause is remanded.

Reversed and remanded.

e 2 Stewart 21.