There was no error in refusing to render a judgment in favor of the plaintiff, under the facts in evidence. The real inquiry is whether the defendant was entitled to the judgment which he obtained on his prayer for specific performance of the verbal contract made between himself and the plaintiff. The contract for the purchase of the land, and the contract that Davison should erect a house upon it prior to his taking possession, as well as the performance of the latter contract by Davison, occurred at a time when Davison was legally and equitably the owner of the land, which included the house.

When the house was completed, Poole had no such right, either legal or equitable, as could have been enforced. Davison, at that time, might have declined to carry out the verbal agreements, and no *378court would have compelled him to do so. When he subsequently consented to give possession, and that Poole should perform acts on the faith of the verbal contracts, through which, alone, they could become obligatory, he was the owner of the land and house for which Poole had contracted to pay $330. His doing and consenting to the doing of the acts, on which the claim of Poole now has standing in court, ought to be read in the light of the facts existing before these things were done.

If Poole had verbally contracted to buy the land and house to be erected on it, and to pay therefor $330, it is clear that he could not have specific performance, unless he had paid the price, taken possession, and made improvements thereon, or otherwise had so changed his condition, on the faith of the contract, that not to give him this. relief would operate a fraud upon him.

Davison permitted him to take possession, on the faith of his promise to pay $330 for the property as it then stood, and,, although the contracts for the land and for the construction of the house may have been made on different days, he cannot be heard to claim that. the one was for the land and the other for the construction of the house, unless, by the contract for the naked land, he acquired some right which the law recognizes. The house constructed by the owner became a part of the land.

Possession is one fact which tends to give right to have the verbal contract made obligatory. This was given while the land, as it stood,. belonged to the plaintiff, and while the defendant’s promises to pay $330 for it, were by both parties understood to apply to the entire property. Another fact which induces courts to give effect to such verbal contracts to sell land is that improvements have been made upon it. Can the defendant claim that the improvements, which were necessary to the shelter of his family and the use of the land, were made by him, until he pays the plaintiff for them? Improvements made under such circumstances, by the vendor, cannot aid a vendee in enforcing specific performance of a verbal contract to sell land, until he pays for them.

If the defendant will pay the balance unpaid on the $330, he will then be entitled to such a decree as was rendered in his favor, but not otherwise. Improvements made by him count for nothing on his prayer for specific performance, so long as he fails to perform his part of the contract, by not paying the entire purchase money. It does not appear that time was of the essence of the contract, nor does it clearly appear that the defendant was in default on the balance due, for there seems to have been no definite time fixed for the payment.

*379If the plaintiff thinks proper to do so, in case the defendant fails to pay the part of the price unpaid, he may so amend his pleadings as to entitle himself to a judgment for the unpaid balance, if in fact it be due, and to a decree directing the sale of the property to satisfy it.

The judgment will be reversed and the cause remanded, that the parties may take such steps as they deem proper to secure their several rights. It is so ordered.

Beversed and Bemanded.

[Opinion delivered January 29, 1886.]