delivered the opinion of the Court:

The amended complaint substantially charges that plaintiff’s intestate, John Goller, on the second day of January, A. D. 1865, made a verbal purchase of an interest in a mining claim from the defendant, Benfeldt; that Goller was immediately put into possession by Benfeldt, and that both parties to the sale understood" that the titlfe to the interest sold passed to Goller, and intended that it should so pass ; that Benfeldt received the entire consideration of the sale, and that Goller, relying upon the purchase, proceeded to prospect the mine, bought materials, run expensive tunnels, developed the mine and made it valuable; that during all this time he was encouraged by Benfeldt to expend money, and perform labor in developing the mine, under the belief that he was part owner, and that he continued in possession as owner, and continued to work upon the mine until after January 3d, 1866, at which time Benfeldt conveyed the entire mine, by deed, to the defendant, Fett, who purchased with full knowledge of Goller’s equities, and that the sale was made to defraud Goller,

There can be no doubt that the facts stated in the complaint show a contract of sale, and that nothing remained to be done to render the same effectual, except the conveyance on the part of Benfeldt. It was not necessary that there *112should have been an express agreement to execute a conveyance on the part of Benfeldt. If there was a sale, and the conditions of the sale have been fully performed on the part of the purchaser, it will be presumed that the vendor undertook to make such a conveyance as will render the sale effectual.

The facts stated in the complaint are clearly sufficient to show such a part performance as will take the contract out of the operation of the Statute of Frauds. The purchaser paid the entire consideration. He took possession, and was liable to be treated as a trespasser, unless he could invoke the protection of his contract. He expended large sums of money upon the mine. He developed it, and by his labor and money gave to it nearly its entire value. It would be a most palpable fraud, under the circumstances, to allow the vendor to decline to execute the contract.

The question of the Statute of Limitations does not arise in the case, for the transcript fails to show when the suit was commenced.

Judgment reversed.