The opinion of the court was delivered by

— We think that there was sufficient evidence of the agreement to convey this particular five acres of land to Paul, and of his transfer of his right to Silverthorn. If the possession was delivered in pursuance of the contract, in such way as to pass an equitable title, and any portion of the construction remained unperformed, the plaintiff had a right to a conditional verdict to enforce the performance. But there Avas only a very insignificant part alleged to be unperformed, and as performance was offered and refused, it seems very appropriate that the plaintiff should not ask for a conditional verdict.

We had at first some difficulty in the sufficiency of the evidence .of delivery: but we find the vendee noAV in possession, with evi*412dence that he has had it enclosed with his own land, and he has had the exclusive use of it for ten years; that the fence was put up with the plaintiff’s leave given, after having aided in marking out the lines; that for seven years before the trial, the land with the plaintiff’s consent was assessed to the defendant, and that the plaintiff acknowledged that he had given him the possession; and this we think was sufficient evidence to justify in finding that the possession of the land was delivered in pursuance of the contract, and to bind the plaintiff by such delivery, especially after the lapse of time appears to have barred the defendant’s right, .to sue for the work done in consideration for the land.

Judgment affirmed.