§ 478. Some disposition seems to exist, both in courts 2 and text-writers,3 to treat the continuing in possession, and the taking of it, as standing upon the same footing, and therefore entitled to the same weight, in the view of a court of equity. However unsatisfactory the rule may be that allows proof of possession merely to justify a decree for specific performance, there is this to be said in its favor, that the taking of possession is an overt and public act of the plaintiff, capable of proof or disproof by other testimony than his word alone, whereas, in the case of continuing in possession, there is no new act, nor can any change of position be shown save by the word of the party seeking to enforce an alleged oral agreement. And beside the fact that of itself it affords no corroboration of the parol testimony upon which its proof solely depends, it is difficult to see how a mere change in the character of a possession already taken can in any case be followed by consequences so serious as to be ground for equitable interference. The important prerequisite to the exercise of that power is that the plaintiff should show such acts and conduct on his part, as of them-

1 Jones v. Peterman. 3 Serg. & R. (Pa.) 543, per Tilghman, C. J., Sugden, Vend. & P. 141; Danforth v. Laney, 28 Ala. 274; Recknagle v. Schmaltz, 72 Iowa, 63; Railsback v. Walks, 81 Ind. 409; Felton v. Smith, 84 Ind. 485; Messmore v. Cunningham, 78 Mich. 623; Koch v. National Building Association, 137 111. 497; Bigler v. Baker, 58 N. W. Rep. (Neb.) 1026.

2 In Pearson v. East, 36 Ind. 27, the court was equally divided upon the question of the effect of continuing in possession merely. In Morrill v. Cooper, 65 Barb. (N. Y.) 512, continuing in possession, with payment in full, was held sufficient to bar the defence of the statute. Upon full consideration a contrary decision was reached in Emmel v. Hayes, 102 Mo. 186, overruling Simmons v. Headlee, 94 Mo. 482. But see Peckham v. Balch, 49 Mich. 179.

3 In [§ 763, a] of Story's Eq. Jur , the editor says: "We see no reason why the continuance of possession under a contract may not be regarded as much part-performance as the taking possession under the contract." selves are confirmatory both of his having made the contract and furthermore of his having acted upon the faith of it after it was made. But the continued holding is naturally and properly referable to the old tenancy, and does not at all necessarily suggest any new agreement between the parties.

§ 479. The payment of an additional rent is in itself an equivocal circumstance, where a claim is set up of a positive agreement for a new lease, inasmuch as it may be attributed to a mere holding from year to year, after the expiration of the old lease, or there may be other inducements to its payment. But where the bill to enforce such an agreement alleged that the landlord had accepted the additional rent upon the foot of the agreement, Lord Loughborough would not allow a plea of the statute, but required the landlord to answer to the allegation.1

§ 480. Where the tenant, continuing in possession, makes improvements upon the premises, this fact is of weight to show a change in the holding.2 But they must, of course, be of such a marked and important character as to be not naturally reconcilable with the continuance of the old relation. In a case where the improvements which were made and the alleged expenditure by the tenant were no more than what would take place in the ordinary course of husband y, Lord Chancellor Sugden said that it would be against all authority to say that such acts amounted to part-pef ormance.3

§ 481. Where the party alleging the contract, however, was previously a stranger to the estate, the question, quo animo the possession was taken, is generally answered, without further proof, by the mere fact of his being in possession with the knowledge of the owner of the fee, and without objection by him; a natural presumption arising from this fact, that some contract has been entered into between the parties. This presumption, however, it is said, does not arise where a son enters upon land previously owned by his father, even though he make valuable improvements thereon; such a transaction generally resulting from the confidence which exists between father and son, that the father will provide for the son in his will, which is perfectly consistent with the father's salutary retention of the title to the land.1

1 Wills v. Stradling,3 Ves. Jr. 378; Wilde v. Fox, 1 Rand. (Va ) 165; Williams v. Landman, 8 Watts & S. (Pa.) 55; Spear v. Orendorf, 26 Md 37; Spalding v. Conzelman, 30 Mo. 177; Nunn v. Fabian, L. R. 1 Ch. App. 35; Lincoln v. Wright, 4 De G. & J. 16.

2 Savage v. Carroll, 1 Ball & B. 265; Sutherland v. Briggs, 1 Hare, 26; Dowell p. Dew, 1 Younge & C. C. C. 345; Hibbert v. Aylott, 52 Texas, 530: Edwards v. Fry, 9 Kans. 285.

3 Brennan v. Bolton, 2 Dru. & W. 349. And see Frame v. Dawson, 14 Ves. 386; Padfield v. Padfield, 92 111. 198.

§ 482. From the very terms of the rule that the possession must be taken or delivered in pursuance of the contract, it seems to follow that it must be subsequent to it in time. And it was so held in Pennsylvania, in a case where the plaintiff had taken possession, and made improvements upon the land in anticipation of the contract.2 Where a tenant under an unexpired lease for a year made an oral agreement for a term of years to begin at the end of his yearly holding, it was held that valuable improvements made after the agreement but before the new term began would justify a decree for specific performance.3

§ 483. In all cases the entry of the purchaser must be with the knowledge of the vendor. Otherwise he cannot be said to enter under the contract at all, but is a mere trespasser, and can derive no benefit from his trespass, for the purpose of obtaining a specific execution of any contract he may have for the purchase of the land; nor, on the other hand, can the vendor be charged with fraud in respect of a transaction to which he was not privy and consenting.4 To use the expressive phrase of Mr. Justice Grier, "a scrambling and litigious possession " will not suffice to make a case for relief in equity.1 At the same time, it would seem that where possession has been long continued under the eye of the vendor, he would be held estopped to deny that the entry was without his consent.2 Permitting the party to occupy the property for a few months, however, where it was of trifling value as to profits, and no improvements put upon it in the meantime, has been considered insufficient for this purpose.3