Opinion by

As we construe the contract of March 29, 1862, Black was conditionally a purchaser of the land, as the tenant of Len, depending on the payment or non-payment of the stipulated price in tobacco, annually. It appears that Black, after cultivating the land one year and making some improvements, elected to abandon the attitude of a purchaser, and sought to dispose of his alternate rights, under the contract, and upon the failure of Len to pay him for his improvements he sold to Henson for $30 and put him in possession. Len seem's to have treated this transaction, as he had a right to do, as a transfer of the lease, which began and took effect upon the election o'f Black that he would not hold the land as a purchaser.

There is not, we think, any such evidence of an adverse holding of the land by Henson as to entitle him1 to the benefit of the statute of limitation, as applying, before the expiration of the lease, which was less than two years, six months before the institution of this action.

It results that, in our opinion, upon the fact proved on the trial, the court erred in adjudging the inquisition found' in the country to be true.

Wherefore the judgment is reversed and the cause remanded for a new trial and proceedings not inconsistent with this opinion.