COLLIER, C. J. In Allen v. Booker, [2 Stew. Rep. 21,] it was determined that an action of assumpsit lies to recover back money paid on the purchase of land by parol, on the ground that such a contract ivas void by the statute of frauds. It is not expressly shown by the report of the case, that the purchaser was even in the possession of the land, or whether he did any act indicative of an intention not to perform the contract on his part other than to bring suit.

And the Court place their conclusion upon the reason, that as payment of part of the purchase money, did not take the case out of the statute «f frauds, so as to authorize the enforcement of a specific performance of the contract, the plaintiff would be remediless if the action could not be maintained. The facts of this case are materially variant from that cited, and entirely distinguish it. Here the plaintiff not only took possession of the land, but continued to occupy .it for three years, and up to the time of the trial. In Meredith v. Naish, [3 Stew.

Rep. 207,] it was held, that where the purchaser of lands had paid a part of the purchase money and took possession under a parol contract, a specific performance might be coerced against the vendor, and the residue of the money recovered by him in an action at law. But independently of thfe decision, we are prepared to sa}*-, that the first instruction prayed should have been given. Morality forbids the idea that one man should take possession of another’s property under a contract, which at most is merely void, and notwithstanding its continuous enjoyment, refuse to make for it any remuneration.

Here the seller does not seek to recover of the purchaser upon his contract for payment, but the action is by the buyer, and assumes the utter invalidity of the contract, and asserts a right to be refunded what has been paid under it, although the purchaser’s possession has never been molested, and the vendor has not refused to execute the contract. Such a demand is against equity and good conscience, and cannot be entertained. It is needless to consider whether the last charge asked should have been given, as the action was not maintainable upon the proof. The judgment is reversed and the cause remanded.