delivered the opinion of the court.

■ Had the petition simply asked for an injunction, the decision of the' court in dissolving the temporary restraining order and dismissing the proceeding, would undoubtedly have been correct; for an injunction is not the proper remedy to prevent the wrongful sale of land, where there is no allegation of insolvency or other matter bringing the case within some exclusive branch of *412equity jurisprudence. But the petition in this case, in addition to the prayer for an injunction, asked for the specific performance of a contract, and the cancellation and surrender of a note and mortgage.

The only witness there was to support the defense set up was the defendant Johnson himself, and his evidence is clearly overborne and outweighed by the array of testimony for the plaintiff. The evidence leaves no doubt on my mind that an agreement was arrived at and a contract made between Waterman and Johnson. Waterman unquestionably thought so, and Johnson admitted it and acted upon it. He not only told the company at Waterman’s house that he made the trade, but he went back to the mill and told Smith that such was the fact, and in pursuance of the bargain put Smith in possession of the mill as a partner, and the two jointly carried on the mill in their partnership name, which Johnson caused to be changed from the old firm to the new.

When the mill was thus delivered up and changed hands, through the agency of Johnson in carrying out the agreement with Waterman, it was too late for him afterward to say that Smith had not paid the $100 that he agreed to pay, and therefore the contract was not consummated. Had Johnson relied on that payment as a condition precedent, he should have insisted upon it before he put Smith in possession of the mill as a partner. When he did so, and surrendered up Waterman’s property to Smith, and recognized him as a full partner, Waterman had a right to suppose that the money was either paid or that its payment was waived. Nothing was heard from Johnson about Smith’s default till a dissatisfaction sprung up between them, and then it was that Johnson suddenly discovered that the agreement was never carried out, and that Waterman was still a part owner of the mill. There is no dispute as regards Smith’s readiness and willingness to execute the mortgage that he was to give to secure the payment of the purchase-money to Johnson.

Upon the whole case I think it is very clear that the contract was consummated, and that possession was given under the contract, and that Waterman is entitled to have his note and mortgage delivered up to him. That Smith and Johnson do not get *413along well with their business, ought not to injuriously affect Waterman, when he has fully complied with his agreement and parted with his property on the strength thereof.

The judgment will be reversed and the cause remanded.