The judgment of tho court was pronounced by

The plaintiff, who claims as tiro assignee of Hall and wife, sues the defendant for the sum of $3,000, upon a contract of sale of their interest in certain lands and the improvements thereon, and for the further sum of $329, for certain moveables alleged to have been sold to the defendant.

*159The contract with regard to the lands, which is without date, but is signed* by Hall and his wife and by the defendant, declares that they sell, release, and make over to Phillips all their right title and interest in and to a section of land (describing it) on which the vendors reside, formerly belonging to S. C. Phillips, deceased ; that in consideration of such sale Phillips binds himself to pay the vendors “$1,500 on account of improvements made on the said tract of land up to the time when possession shall be delivered to the said Phillips;'” “secondly, that Phillips shall use all proper and reasonable Afforts to obtain a full and indisputable title to said land, and hereby engages to proceed therein to the best of his knowledge and ability, thirdly, that the said Phillips shall on obtaining such title pay over to the parties of the first part the further sum of $1,500“ fourthly, the said Phillips engages to sustain the necessary law expenses, and also those aristng'from tire purchase of certain claims to said land, provided said expenses de not altogether exceed $1,000. Itis further understood and agreed upon that the parties of the first part are hereby bound to execute any further instrument of writing, which may be necessary for the carrying into effect the true intent and meaning of these presents, and for the securing the parties of the second part in the premises; and further, that when, in addition to the above, the claims- of tho heirs of Fanny Wallace, legatee of S. C. Phillips, shall have been obtained by tho party of the second part, the title shall be'deemed complete between the parties to this instrument.”

The instrument appears not to have been executed in duplicate, and’ remained in the possession of the vendors. In Iris petition the plaintiff alleges that tire contract was signed on the 1st December, 1-843, and that Phillips, in* virtue of th« contract, obtained possession of the land an or about the 1st January,. 1844.

The plaintiff’ was bound to prove that possession had been given. This was-essential to his recovery under the contract. The absence of any evidence to that effect is an insuperable barrier to the plaintiff’s present success.

As the contract may be the subject sf future litigation, it is proper to state that we think a portion of the testimony of Nicholson, a subscribing witness, was improperly admitted. This witness stated that he was present at the sale: “That the title of the vendors was considered defective, and the title was supposed to be* in William Henderson. That Hall and his wife told Phillips at the time, of the-defect of the title. That the second $T,500 was to be paid when Phillips obtained Henderson's title. That Henderson was the only person supposed to have-any claim at the time of the sale. That there was supposed, at the time, to be an absent heir, but Phillips was willing to take the title in- Henderson, and risk the claims of the absent heir, who was supposed to be dead, and Phillips sard- at the time when, he obtained Henderson’s title, his, Phillips’ title would be perfect.” If this witness had been called to prove that it was understood and acknowledged by the contracting parties at the time that Henderson was the owner of tire rights of all the heirs, or was himself the sole hen* of Fanny Wallace, legatee of £. C. Phillips, Iris testimony to that effect would have been admissible; but as tho testimony stands it tends to contradict and change the written agreement. Under that agreement the title was to be deemed complete when the defendant should have obtained the claims of all the heirs of Fanny Wallace; but according to the parol testimony the purchaser was to taire the risk of the outstanding claim of an an absent heir.

With regard to the claim of $329 for moveables sold, the evidence is also deiective. It perhaps approaches to proof of an agreement to purchase; but there is no proof of delivery by the vendors-.

*160Wé’ can bfily account for the verdict of flie jury in favor of the plaintiff, upon the supposition that they acted upon their own knowledge with regal'd to the controversy, beyond the evidence offered at the trial.

It is therefore, decreed that the judgment of the District Court be reversed,-and that there be judgment as in case-of non-suit, the plaintiff paying the costs in-both courfs1.