Possession, in order to constitute part performance, must be taken under and by virtue of the contract and must be referable solely to such contract.1 If the vendee is in possession when the contract is made and merely retains his former possession, such possession does not constitute part performance.2 Thus

Brundage V. Loan Association, 11 Wash. 277; 39 Pac. 666; Reinhart v. Gregg, 8 Wash. 191; 35 Pac. 1075; Miller v. Lorentz, 39 W. Va. 160; 19 S. E. 391; Boggs v. Bodkin, 32 W. Va. 566; 5 L. R. A. 245; 9 S. E. 891.

2 Houston v. Hilton, 67 Ala. 374; Schierman v. Beckett, 88 Ind. 52.

3Kriz v. Peege, 119 Wis. 105; 95 N. W. 108.

4 Ballard v. Camplin, 161 Ind. 16; 67 N. E. 505.

5 Bennett v. Dyer, 89 Me. 17; 35 Atl. 1004.

6 Eshleman v. Vineyard Co., 102 Cal. 199; 36 Pac. 579.

1 Bromley v. Aday, 70 Ark. 351; 08 S. W. 32; Von Trotha v. Bamberger, 15 Colo. 1; 24 Pac. 883; Allan v. Bemis, 120 la. 172; 94 N. W. 560; Lowery v. Lowery, 117 la. 704; 89 N. W. 1118; Hartshorn v. Smart, 67 Kan. 543; 73 Pac. 73; Perkins v. Perkins, 181 Mass. 401; 63 N. E. 926; Emmel v. Hayes, 102 Mo. 186; 22 Am. St. Rep. 769; 11 L. R. A. 323; 14 S. W. 209; Glad-well v. Holcomb, 60 O. S. 427; 71 Am. St. Rep. 724; 54 N. E. 473; Boozer v. Teague, 27 S. C. 348; 3 S. E. 551; Gallagher v. Gallagher, 31 W. Va. 9; 5 S. E. 297; Cutler v. Babcoek, 81 Wis. 195; 29 Am. St. Rep. 882; 51 N. W. 420; Ellis v. Cary, 74 Wis. 176; 17 Am. St. Rep. 125; 4 L. R. A. 55; 51 N. W. 420.

2 Lake Erie, etc., Ry. v. Ry., 86 Fed. 840; Shovers v. Warrick, 152 111. 355; 38 N. E. 792; Swales v. Jackson. 126 Ind. 282; 26 N. E. 62; Wilmer v. Farris. 40 la. 309; Bil-lingslea v. Ward, 33 Md. 48; Mess-more v. Cunningham, 78 Mich. 623; possession of land by one who takes possession as lessee is not such part performance of a subsequent oral contract between himself and his lessor as vests an interest in land for the new term in the lessee;3 nor is it part performance of a contract to convey such land;4 nor is possession retained by a judgment debtor of realty sold on execution part performance of a contract between himself and a purchaser at the execution sale.5 So possession of realty by one to whom the owner had promised to devise it is not part performance of such contract where possession was not taken under such contract.6 An assignment of a lessee's interest in the unexpired term and his assignee's taking possession under such assignment do not constitute part performance of an oral contract between the lessee, his assignee and his lessor, by which the lessor in consideration of the assignment agrees to renew the lease.7 A's withdrawal of an application for a patent for a given mining claim and abandonment of a contest of B's application for a patent for the same claim is not a change of possession within the meaning of this rule.8

To constitute part performance the possession taken must be such as shows the existence of some contract for conveyance. Residence in a dwelling by one who might have been so residing by the permission of the owner, such as his wife,9 or his mistress,10 or guest,11 is not part performance. Possession under circumstances which suggest a lease is not part performance of a contract of sale. Thus, A's possession of realty for the sole purpose of raising crops thereon and his payment to B, the owner, of the usual cropper's rent - one-third of the crop -is not part performance of an oral contract by B to sell such realty to A.12 So using a vacant lot to store bricks temporarily is not such possession as constitutes part performance,13 nor is putting some fence posts and lumber on the land.14

44 N. W. 145; Bigler v. Baker, 40 Neb. 325; 24 L. R. A. 255; 58 N. W. 1026; Gladwell v. Holcomb, 60 O. S. 427; 71 Am. St. Rep. 724; 54 N. E. 473; Lefferson v. Dallas, 20 O. S. 68; Crawford v. Wick, 18 O. S. 190; 98 Am. Dec. 103; Armstrong v. Kattenhorn, 11 Ohio 265; Jones v. Peterman, 3 S. & R. (Pa.) 543; 8 Am. Dec. 672; Ellison v. Torpin, 44 W. Va. 414; 30 S. E. 183.

3Shovers v. Warrick, 152 111. 355; 38 N. E. 792; Swales v. Jackson, 126 Ind. 282; 26 N. E. 62; Hutton v. Doxsee, 116 la. 13; 89 N. W. 79: Messmore v. Cunningham, 78 Mich. 623; 44 N. W. 145; Bigler v. Baker, 40 Neb. 325; 24

L. R. A. 255; 58 N. W. 1026; Armstrong v. Kattenhorn, 11 Ohio 265.

4 Hutton v. Doxsee, 116 la. 13; 89 N. W. 79.

5 Emmel v. Hayes, 102 Mo. 186; 22 Am. St. Rep. 769; 11 L. R. A. 323; 14 S. W. 209 (overruling on this point, Simmons v. Headlee, 94 Mo. 482; 7 S. W. 20; Emmel v. Headlee (Mo.), 7 S. W. 22). See Lewis v. North, 62 Neb. 552; 87 N. W. 312.

6 Ellis v. Cary, 74 Wis. 176; 17 Am. St. Rep. 125; 4 L. R. A. 55; 42 N. W. 252.

7 Koch v. Building Association, 137 111. 497; 27 N. E. 530; affirming, 35 111. App. 465.

8Ducie v. Ford, 138 U. S. 587.

To constitute part performance the possession must be exclusive of the vendor's. Possession in common with the vendor is not sufficient to take the case out of the statute,15 as where plaintiff had used a right of way jointly with defendant under an oral contract.16 Possession must be taken with the knowledge of the vendor in order to constitute part performance.17

If a tenant in possession enters into an oral contract with his lessor for a renewal of the lease upon different terms, as on an increased rent,18 or a diminished rent,19 retention of possession

9Cooley v. Lobdell, 153 N. Y. 596; 47 N. E. 783. So where she remains in possession after he has left the state. Erringdale v. Riggs, 148 111. 403; 36 N. E. 93.

10 Van Epps v. Redfield, 69 Conn. 104; 36 Atl. 1011.

11 Davis v. Moore, 9 Rich. Law (S. C.) 215.

12 Bresnahan v. Bresnahan, 71 Minn. 1; 73 N. W. 515.

13 Hunt v. Lipp, 30 Neb. 469; 46 N. W. 632.

14 Foster v. Maginnis, 89 Cal. 264; 26 Pac. 828.

15 Lake Erie, etc., Co. v. Ry., 86 Fed. 840; Gorham v. Dodge, 122 111. 528; 14 N. E. 44; Johns v. Johns, 67 Ind. 440; Larison v. Pol-hemus, 36 N. J. Eq. 506; Newcomb v. Cox, 27 Tex. Civ. App. 583; 66 S. W. 338; Munk v. Weidner, 9 Tex. Civ. App. 491; 29 S. W. 409.

16 Long v. Mayberry, 96 Tenn. 378; 36 S. W. 1040.

17 Foster v. Maginnis, 89 Cal. 264; 26 Pac. 828; Barnett v. Glass Co., 12 Ind. App. 631; 40 N. E. 1102; Carrolls v. Cox, 15 la. 455; Pawlak v. Granowski, 54 Minn. 130; 55 N. W. 831; Cockrell v. Mc-Intyre, 161 Mo. 59; 61 S. W. 648; Nibert v. Baghurst, 47 N. J. Eq. 201; 20 Atl. 252; Groucher v. Martin, 9 Watts (Pa.) 106.

18 Miller v. Sharp (1899), 1 Ch. 622; Moore v. Harter, 67 O. S. 250; 65 N. E. 883.

19Doherty v. Doe, 18 Colo. 456; 33 Pac. 165. (In this case the lessee refused to perform unless the rent was reduced, and the landlord agreed orally on a reduction of rent. This oral agreement was held to be a waiver of the lease, and the retention of possession by the tenand payment of the rent due under the new contract are held to take the lease out of the statute; at any rate as concerns the time during which the tenant retained possession. The courts are not, however, unanimous on this question. Thus where the tenant held over after the expiration of his lease under an oral contract with his landlord for a reduction in rent, and paid such reduced rent, it was held that the contract was within the statute and that the landlord could recover the difference between the original rent, and the rent actually paid under the oral contract.20