concurred.

Carpenter, J. Although the plaintiff showed title in himself to seven-eighths only of the property to which the injury is alleged to have been done, yet he was in exclusive possession of the whole, and therefore at any rate entitled to recover on the third count. Persons having a mere equitable interest, if in actual possession, may sue for an injury done by a wrong-doer to that interest. Of consequence, as it seems to me, if they can sue and recover, the nature and extent of their interest will enter into the question of damages, and I think may be shewn in order to ascertain their amount. A purchaser in possession under such contract for purchase as can be enforced, by the rule that equity will look upon things agreed to be done, as actually performed, has such an interest that he may sell or charge the estate, or convey it by devise, before the conveyance is executed : subject, of course, to the contract under which held. 1 Sugd. Vend. 279 (10th Ed.) So the vendee, being actually seised of the estate in contemplation of equity, must bear any loss which may happen between the agreement and conveyance, and will be entitled to any benefit which may accrue in the interim. 1 Ib. 276, 468.

It is true these are rights for the most part enforced only in equity, but still it appears to me that they are rights which may be noticed even at law, for the present purpose, when the *9amount of injury received is the subject of inquiry. I am not satisfied there was any error in the admission of the testimony stated in the first bill.

In regard to the second bill, I am inclined to think the evidence immaterial, and therefore its admission, as it did the party no injury, no ground of reversal.

Judgment affirmed.

Cited in Jackson v. Todd, 1 Dutch. 129-134; Freeman v. Headley, 4.Vr. 541.

It was conceded upon the argument, that the evidence of the parol agreement to purchase, and possession under it, was not competent to prove the seisin of the plaintiff. It was, however, insisted to bo competent under the last count in the declaration. It was incumbent upon the plaintiff to prove not only that he had an interest in the premises, but such an interest as entitled him to damages; and as he claimed damages to the full amount of the property destroyed, it was necessary for him to establish a legal right to recover that amount — although the evidence offered did not prove a strictly legal estate in the plaintiff, in the one-eighth part of the premises, yet for the purposes of this action, and as against the defendants below, as wrong-doers, it was competent.

The plaintiff was in possession under an agreement which the parties had in part performed by the delivery of possession, and payment of part of the purchase money. A specific performance of it could have been enforced by the vendor. Had the plaintiff abandoned possession after the fire, his vendor could nevertheless have compelled him to take a deed. Resides, the witness who had the strictly legal estate, could not maintain an action himself, or join the plaintiff in an action for the injury, as he was out of possession under the agreement referred to. Under these circumstances, the loss was entirely the plaintiff’s, *8and no recovery could be had for the one-eighth of the value of the buildings burned, except by him.

If this be the proper view of the question raised by the first bill of exceptions, then the rights of the parties could not be affected by admitting in evidence the deed executed in pursuance of that agreement, although executed after the happening of the injury complained of. Eor if the delivery of the possession under the agreement, and part payment of the purchase money for the one-eighth part of the premises gave to the plaintiff a right to recover in damages the value of this part, then it was entirely immaterial whether the deed was admitted in evidence or not. It gave to the plaintiff no additional claim for damages. It entitled him to nothing which he could not recover without it.