
    *Mary Ellison vs. Robert Cathcart.
    Possession and the payment of the purchase money is a good equitable title, and a possession of ten years under such a title is good under the Statute of Limitations.
    Before Earle, J., at Fairfield, Fall Term, 1840.
    Trespass to try title.
    It was admitted that the title to the locus in quo, was originally in William Ellison, from whom plaintiff derived title. The defendant claimed to derive title also from William Ellison, under a parol agreement to sell, between him and James Barkley, with ten years’ possession. The evidence on that point was as follows : Samuel Barkley deposed, that in February or March, 1830, he heard William Ellison say, that he had, several years before, sold to James Barkley a small piece of land (which, on examining the plat, lie recognized to be the same now in dispute, seven and three-quarter acres,) but they had entered into no writings ; that there was a settlement pending, or to be had, between them; that Barkley owed him for the land, and also for some fodder, and he owed Barkley a store account, and he did not suppose there was much difference. But he intended to have a settlement with him, and draw writings. There was no evidence of any subsisting agreement that the price of the land should be set off against the account, and no evidence of any subsequent settlement where their mutual demands were balanced and extinguished. No written agreement was entered into, and no conveyance executed.
    As early as 1822 or 1823, Barkley, who owned an adjoining plantation, had run his fence rather within the line, on Ellison’s side, for some distance, through woods, and at the corner had enclosed about half an acre, which had been continually cultivated from that time forward to the commencement of the suit; but no further possession was proved until within four years, when the whole was cut down and enclosed. There was no proof that any actual possession was taken or held under the parol agreement, the date of which was left entirely uncertain, beyond that already described, which, it was clear from the evidence, must have existed before, and was originally accidental. This, however, cannot be an important feature in the case, as it turned on another *point. I instructed the jury, that under a parol agreement for the purchase of land, such as was proved in this case, the possession of the purchaser, when he enters under it, is only a tenancy at will, until the payment of the purchase-money, and does not become adverse until that event; and that if they were satisfied on the proof, that the purchase-money was not paid, or that there had never, after 1830, been any settlement between Ellison and Barkley, by which their mutual demands were balanced and extinguished, then the possession of Barkley had not become adverse, and would not enable him to hold, although it may have continued ten years. I informed them that an actual possession of twenty years, under such an agreement, would authorize a presumption of payment and a conveyance, but there seemed no proof here on which such a presumption could be raised. The jury found a verdict for the plaintiff. The grounds of appeal seem to require no particular remark.
    Defendant appeals, and moves for a new trial, on the following grounds :
    1. Because the Circuit Court erred in charging the jury that the possession of defendant’s lessor, under a parol sale, could not avail him without proof of the actual payment of the consideration in money; and that until the same was paid, he was only a tenant at the will of the vendor, and the Statute of Limitations would not run in favor of his possession.
    2. Because, if the above rule be correct, (that the Statute of Limitations will not commence to run in favor of a possession under a parol sale of lands until the payment of the consideration money,) there was ample proof in this case that the consideration for the land was paid before or at the time of the sale.
    
      3. Because the Circuit Court charged the jury that inasmuch as the lessor of the defendant was in possession of the land before his purchase, his after possession could not bo considered in pursuance of his purchase, and therefore the Statute of Limitations could not avail him.
    4. Because there was no proof that the lessor of the defendant was in possession of the land before his purchase ; and,* therefore, if the rule laid down by the Court be correct in this respect, it was not supported by the facts of the case.
    5. Because the Court charged the jury that it was in the power of the lessor of the defendant to put an end to the contract at any time before the payment of the consideration money; and therefore the Statute of Limitations would not commence to run until the same was paid.
    6. Because the Court charged the jury that the possession of the defendant's lessor was merely accidental, although there was satisfactory and clear evidence that there were marked lines designating the extent of defendant’s claim.
    7. Because the Court charged the jury, that even admitting the defendant's lessor had been in actual possession of the whole of the land in dispute from the time proved, the Statute of Limitations would not commence to run in his favor until the consideration money for the land was paid.
    8. Because the verdict is contrary to law and equity, and against the evidence of the case.
   Curia, per

Evans, J.

The general rule is, that he who enters by the permission of the owner of the land, cannot acquire a title under the Statute of Limitations so long as the relation between the parties remains unchanged. It is not disputed that he who enters under a contract to purchase, where it is understood that the seller is not bound to make the title until the purchase money is paid, is but a tenant at will until he performs the condition ; but whenever he has paid the price, the relation between them is changed, and from thence forward, at least, the tenant holds in his own right. So also, if the purchase money be paid at or before the commencement of the possession, there would bo no pretence to regard the tenant as not holding in his own right. It appears from the evidence that Ellison, the vendor, said, in 1830, that several years before that time he had sold the land, by parol, to Barkley; that Barkley owed him for the land and some fodder, and he owed Barkley a store account, and he did not suppose there was much difference between them, but he intended to have a settlement with him, and to draw writings. On reference to Barkley’s books, it appeared that as far back as 1819, a store account of Ellison’s stood open to an amount greater than the price of the land. No other construction can *well be placed on these declarations, but that the account, which was probably due at the time the land was sold, was to be accepted as a payment on account of the land ; and if the money be paid, it must be wholly immaterial how the fact is established. Possession and the payment of the purchase money, is a good equitable title ; and a possession of ten years, under such a title, is good under the Statute of Limitations. The Circuit Judge seemed to have entertained the opinion that until there had been a settlement between the parties, by which their mutual accounts had been balanced and extinguished, the statute would not commence to run. In the view which I take of the case, a settlement of their mutual accounts was wholly immaterial. If the debt was paid, it was sufficient, provided satisfactory evidence of the fact was produced. Some of the authorities go so far as to say, that whenever the debt is extinguished, even if it be by the Statute of Limitations, the possession becomes adverse ; and of this there can be no doubt, where the payment of the purchase money is not a condition precedent. In the particular above stated, I think there was error in the charge of the Circuit Judge, and the motion is therefore granted.

Clarke and McDowell, for the motion. Woodward, contra.

Gantt, Richardson, O’Neall, Butler, JJ., concurred. 
      
       See Bank vs. Smyers, 2 Strob. 28. Kimbrell vs. Walker, 7 Rich. 429. Sumner vs. Murphy, 2 Hill, 488. An.
      
     