delivered the opinion of the court.

The questions presented for consideration in this case arise upon the exclusion of certain evidence offered on the trial below, on the part of the defendant.

First. After the evidence was closed and the case rested on the part of the plaintiff’s lessor, the defendant offered in evidence a written agreement signed by Farr, by which, in consideration of the sum of $2800, he agreed to convey to Mizell and Graves the lot in controversy, within twelve months after the date, February 11th, 1854; or thereafter, whenever the parties should require ; and in connection therewith offered to prove by a witness, Catlett, declarations made by Farr that he had no interest in the lot, and that he had sold and conveyed it to Mizell and Graves. The plaintiff objected to the introduction of this evidence, and the objection was sustained, the defendant excepting.

The purpose for which the evidence was offered appears to have been to show that Farr had divested himself of the title, and therefore that he could not recover in the action.

We think that the evidence was properly excluded. The contract offered was made pending the action, and was executory in its character, being merely an agreement to convey, which was not shown to have been performed, and which might never have been performed. It could not therefore of itself operate as an entire divestiture of the legal title, so as to defeat this action. And the declarations *210made to Catlett having direct reference to this agreement, were incompetent, for the same reason that the agreement itself was incompetent. Apart from the agreement, it was a mere declaration that he had parted with his interest in the lot, which of itself would not be competent to divest his legal title, and which was not binding upon him, and was contradicted by the fact that he was then prosecuting the suit to recover the property.

Second. The defendant also offered in evidence a release of dower, executed by the widow of John Shields to the defendant. Upon objection by the plaintiff this was excluded, and we think properly. It was not shown, or offered to be shown, that the widow’s dower in the lot had been assigned; and it might turn out upon an allotment of her dower in her husband’s ■ land, that other lands than the lot in controversy would be assigned to her.

Thirdly. The defendant then offered in evidence a transcript of a judgment against John Shields, an execution thereon, and a sheriff’s sale and deed, showing a purchase by the defendant; also various matters of evidence in writing, and several depositions and witnesses, for the purpose of showing, that after the written agreement by Farr, for the sale of the lot in controversy to Shields, the purchase-money had been paid in full by Shields, and that in the mean time and before the rescission of the contract of sale by Farr and Shields, the judgment against Shields, under which the defendant claims title, was rendered, and became a lien on the lot as the absolute property of Shields. This evidence was for the most part the same as that introduced in two suits in chancery, in relation to the same lot, formerly pending between the parties to this suit. But additional evidence was also now offered to show admissions by the plaintiff, that the purchase-money had been fully ■paid to him by Shields, and to prove acts of the plaintiff tending to show the payment of the purchase-money by Shields. This evidence was all admitted in the first instance, but was afterwards ruled out by the court; to which the defendant excepted. And the question now is, was this evidence competent ?

It is incontrovertibly true, that the plaintiff cannot recover in ejectment without showing that he has the legal title. And it is settled in this court, that where a party has purchased land, and paid' the whole purchase-money, and has taken a bond to convey *211the title, but no deed of conveyance has been executed,' he has a mere equitable title, and must go into equity to divest his vendor’s legal title, and until a conveyance of that title be made, that he has not the legal title, and cannot recover in ejectment. Thompson v. Wheatley, 5 S. & M. 506; Wolfe v. Dowell, 13 S. & M. 106. Is there any difference in principle between the position of a party holding such equitable title and defending upon it against the action at law of the party holding the legal title, and that of a party claiming as plaintiff under such title ? It appears not. For in ejectment the legal title alone is the subject of controversy; and there can he no sound legal reason why this rule should not operate equally, upon the rights of the defendant and of the plaintiff. It will not do to say that the defendant’s possession gives him a higher right; because that possession is merely under an equitable claim, which cannot properly be considered in the action of ejectment. Nor will it do to say that his possession, supported by evidence of a just and equitable right, with nothing but the naked legal title outstanding in the plaintiff, should entitle him to defend against the legal title ; because that would transfer from a court of equity to a court of law the cognizance of a question of legal title, and make the action of ejectment depend upon a question of equitable title, which, for very obvious reasons, is not admissible.

We therefore think that the evidence here offered was properly ruled out, and that the judgment is correct, and must be affirmed.

This cause, upon the first argument in this court, at the October Term, A.D. 1856, was reversed, and ordered to be remanded for a new trial. On the application of the appellee, a reargument was granted, and at this term was again argued, and the judgment below affirmed.