Opinion by

All prior equities of the appellant in the land, whether against Gillespie or Smith, were merged in the agreement of April 28, 1882, and thereupon Smith held the legal title and Williams an equity under the terms of that agreement. This equitable title of appellant was conveyed to Hadden by the sale under execution in 1885, and in June, 1886, Hadden conveyed it to Smith who thereby became vested with both the legal and equitable titles discharged of all claims by appellant. The agreement of January 7, 1887, between Smith and appellant is therefore the starting point of any present equity that appellant may have against Smith or his vendee the plaintiff. This is virtually conceded by the appellant’s fourth prayer for instruction to the jury that they should render a verdict for the plaintiff to be released on the payment of six thousand dollars with interest from January 7, 1887. This agreement of January, 1887, is an agreement by Smith to sell on stipulated terms, but there is no agreement by Williams to buy. The only covenant that it contains on his part is that if he does not pay the price before the date fixed he will move out, and to that end he authorizes the sheriff to deliver possession to Smith. To explain this last provision it is only necessary to recall the situation of the parties at that time. Williams’s equitable title had as already noted been sold by the sheriff to Hadden and conveyed by Hadden to Smith, thereby merging it in the legal title previously in Smith. Possessory proceedings before a justice *14of the peace had resulted in a judgment against Williams, and the sheriff was present with a writ of habere facias possessionem. Williams therefore had no interest in the land, nothing but a bare possession which had been judicially declared at an end, and which the sheriff was about to terminate in fact. In this situation of affairs, the agreement gave him an option to buy, nothing more, for there was no obligation on his part to do so. It was not a bargain and sale of the land, either present or future, but a stay of proceedings in a writ of possession, upon conditions named, the performance of which was entirely optional on the part of Williams. To take advantage of the option he was bound to comply with its terms, and this it is conceded he never did.

Down to this point the case is perfectly clear, and shows that the appellant’s entire interest in the land was terminated on January 21, 1887, when the sheriff executed his habere facias, and delivered possession to Smith. It appears however that the sheriff’s delivery of possession was formal only, and after Williams’s goods were set out, he was allowed by Smith to put them back again and continue his actual occupation of the land. He now claims that such occupation was a resumption of his former possession, and a reinstatement of his equitable title which had been divested by the previous proceedings. The burden of proof of such claim was of course upon him, and in support of it besides his own testimony that his original agreement, with Smith had never been regarded by either party as abandoned, he produced several witnesses who testified to declarations by Smith, at times not very definitely fixed but apparently subsequent to January, 1887, that all lie, Smith, wanted out of the land was his money and interest. Against this is the testimony of Smith that at the time of his purchase of the Had-den title he gave express notice that he was buying now for himself, his positive denial that after that purchase he ever made any agreement with Williams for the sale of the land except that of January 7, 1887, and his explanation of allowing Williams to continue his actual occupancy of the land after the sheriff’s delivery under his writ of possession, on the ground that it being winter and Williams having no other place to go, he was allowed to remain until April on the express agreement to go out then or remain as a tenant at a rent to be fixed at *15that time. In this last matter Smith is corroborated by sheriff Chamberlin. On this evidence no chancellor, even without reference to the act of April 22, 1856, P. L. 533, would feel justified in decreeing an equitable title in Williams.

The learned judge below having given the proper construction to the agreement of January, 1887, and there being no sufficient evidence before him to show any new equity in appellant, was right in directing a verdict for the plaintiff.

Judgment affirmed.