126 HIGH COURT OF CHANCERY.

which the possession, (the act of performance relied upon,)
was taken, or who can, or does, undertake to say, that it was
taken in part performance of the agreement, which the plaintiff
has charged in his bill. The answer, therefore, is uncontra-
dicted upon this point by the evidence.

The Chancellor then referred to the extracts, from the testi-
mony of H. N. Gambrill, and Neilson Poe, inserted above, to
show that the possession was neither delivered, or received, in
part performance of this contract; and in relation thereto, said:

It seems to me, therefore, perfectly obvious, that the act relied
upon here as a part performance of the contract charged in the
bill, is not an act "unequivocally referring to, and resulting
from that agreement," but is an act which it is apparent from
the evidence, must be referred to a different agreement, and
consequently it will not take the case out of the statute of
frauds.

The Chancellor said, that insomuch as the plaintiff had not,
as he thought, succeeded in proving the contract stated in his
bill; or an act, in part performance of that particular contract;

he deemed it unnecessary to consider the question, whether the
title was such an one as would be forced upon a purchaser.
With regard to the rent, which by the statement in the answer
the defendants were to have paid, he said, the complainant
was not even entitled to a decree to that extent, first, because
he makes no such claim in his bill—and secondly, because he
has adequate remedy at law in an action for use and occupa-
tion.

[This case was affirmed on appeal.]