McCay, Judge.
This case turns almost exclusively upon the facts. The principles of law involved are undisputed. Taking this as a contract, not good because it is in parol, unless it have been *79partly performed, it is admitted that before specific performance of it will be decreed, its terms must be plainly made out, such performance by the complainant must be proved as would make it a fraud for the defendant to repudiate it, and the Court must be satisfied from the evidence that the contract was in fact made. It seems to us that these conditions are fully complied with. Indeed the evidence that there was such a contract as the bill sets forth is very strong. The oath of the complainant is, it is true, met by the denial of the defendant, but the circumstances furnish proof that, in our judgment, makes the complainant’s evidence largely preponderate. That the complainant should have remained in possession for twelve years, without any passages of any kind between the parties, as landlord and tenant, is very strange, if defendant be right, and this is admitted even by the defendant himself, for he does not even claim that during all that time he ever spoke on the subject of tenancy or rent. True, he says he considered the balance of the Confederate money left after paying the mortgage, as a credit on his debt for rent, but he did not tell this to the complainant. It seems, too, incontestible that the complainant was clearing the land, building upon it, and openly claiming as his own, for twelve years, and this with defendant a close neighbor. It is also in proof, and this is to our minds evidence very hard to overcome, that complainant for several years before 1868, did not himself live upon the land, but rented it to third persons. Is it conceivable that the owner of land will lie quietly by and permit one whose only right to it is that of a tenant — a tenant, too, who regularly neglects to pay rent — to rent it out to third persons, year after year ? And that the possession was quiet is proven not only because he did not retake the possession, but because the witness says he never heard of any claim by the defendant.
As to the payments, it is true the evidence is not so satisfactory. The complainant and the defendant agree neither as to the amount nor the object of these. If the complainant’s story as to the receipts and the destruction or detention of them by defendant be true, the presumption is all in favor of *80full payment. The entries on the note by defendant, and especially the pencil memoranda, as well as his failure to call the witness who was present when the credit was made, are not satisfactory to our mind. The memory of the complainant, old as he is, cannot, doubtless, be depended upon as to dates and amounts, as is apparent from the fact that he only remembers a payment of $500 00 anterior to the Confederate money payment, while the defendant’s own credit on the note itself shows that previously to that time he had made payments which entitled him to a credit on the mortgage of the date of 19th February, 1856, of $1,091 00. The mortgage debt was for $ ........, due 18th November, 1854. A payment dated 18th February, 1856, would reduce this debt, including the $40 00, to a little over $200 00. Now it is strange that the defendant should take $1,000 00 afterwards from complainant and put that as a credit on this note, saying nothing of the overplus, and it is equally strange that this credit of 18th of February, 1856, should have been dated back to that date. Why do this? All the payments of which it was made up were, as defendant says, made after 1st January, 1855. Why fix 18th February, 1856, as a date for the credit. For convenience of counting interest? The note was due 18th November, 1854. There is no harmony between 18th November and 18th February, no convenience in counting interest on a note due 18th November, 1854, procured by having the credit 18th February, 1856. To say that this is the result of the average of the several payments is also strange. How few people, if called upon to put several payments on a note, would average them according to the rule, and put them in the note at the date produced by the average. Nor does the memorandum in pencil enlighten us. It is, on its face, an after thought. It is suspicious.' Altogether we cannot help thinking this $1,091 00 oredit was an independent payment which the old man had made, and thus it, with the very existence of the debt, has passed out of his memory.
Nor are we prepared to say that the complainant is not entitled to the full nominal value of the Confederate money. *81Defendant received it as a payment. Complainant says generally ; defendant says upon the mortgage and rent, though he admits he did not specify any other debt than the mortgage debt; and, under the facts, we should not interfere with the verdict, though it be based on the idea that this money is to be taken as a credit generally, at its nominal value. When it was tendered as a payment he had a right to refuse it. He did not refuse, but took it — took it as money. Is it a harsh presumption to say he took it as everybody then took it — for what it purported to be — money according to its face value? We think not.
But assuming, as we feel bound to do under the evidence, that the contract is fully made out, and that there was a strong case of part performance, if not full performance proven, there is left to make up the balance the use of the place from 1868 to the trial. Under the proof that might be from $150 00 to $600 00 — a large margin. We think the evidence of the payment of both debts is not made out except by the use of this off-set. The jury have evidently given the complainant what they thought the full value of the premises for four years. We think the evidence does not sustain this; that it will take all of this to pay the complainant in full, and we therefore put our affirmance on condition that the plaintiff write off this money verdict.
Judgment affirmed.