Danforth v. Laney. to the parol contract of purchase.-18 Vesey, 332; 13 ib. 474; 1 Ball & Beatty, 127; 2 Story's Equity, § 763. The averment of the answer, that appellant holds as tenant, is matter in avoidance, and must be proved; but the answer is wholly unsupported by any evidence of that fact. The fact of possession is not denied, but the issue is as to the character of that possession. The purchase is proved; and the possession will be referred to that purchase, unless affirmatively shown to belong to the alleged contract of rent. 3. The taking of the note, and the parol sale, material facts within the defendant's knowledge, are denied by the answer, but are proved; and the answer therefore loses its weight as evidence.-20 Ala. 662; 21 ib. 633. 4. When a specifiic performance cannot be decreed, and the party is without remedy at law, compensation in damages will be given.-2 Story's Equity, § 798, note 1; Woodcock v. Bennett, 1 Cowen, 755; Pratt v. Law, 9 Cranch, 492; 4 Ves. 497; 1 P. Wms. 570; Anthony v. Leftwich, 3 Rand. 238. E. C. BULLOCK, contra, contended,— 1. That a party who seeks to take a parol contract out of the statute of frauds, on the ground of part performance, must make out the existence of the alleged contract by clear and satisfactory proof, and the act of part performance must be of the identical contract set up by him. It is not sufficient that the act is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the identical contract alleged in the bill.-1 Maryland Chancery Decisions, 345; Phillips v. Thompson, 1 Johns. Ch. 131; Parkhurst v. Van Cortland, ib. 273; 2 Story's Equity, § 764; 3 Kent's Com. 451; Hood v. Bowman, Freeman's Ch. 290; Wood v. Farmer, 10 Watts, 195; 1 Watts & Serg. 383; 2 Dess. 290. 2. The allegation of the bill is not of possession merely; for that alone, unless it was under the contract of sale, would avail nothing. Possession under the contract is alleged, and is expressly denied by the answer. The answer is strictly responsive, and must be disproved. When delivery of pos session is relied on to take a case out of the statute, it must be referable only to the contract alleged in the bill, and not to a distinct and different title.-Owings v. Baldwin, 1 Harvey and Wife v. Thorpe. Maryland Chancery Decisions, 120; Small v. Owen, ib. 363; 11 Gill & J. 314; 2 Sch. & Lef. 3-7; 3 Watts & Serg. 63; 7 Barr, 91; Freeman's Ch. 290; 10 Watts, 195; 19 Conn. 64; 9 Miss. 566; 4 Cranch, 238; 4 Ired. 125; 1 Dev. Eq. 341; 13 Sm. & Mar. 93. GOLDTHWAITE, C. J.-Regarding the contract for the sale of the land as fully proved, the only question is, whether such a part performance has been shown as will take it out of the statute of frauds. The rule is, that the act must be such as could be done with no other view than that of the agreement being performed, (Sugden on Vendors, 72); and hence, if possession by the vendee, under the contract, with the consent of the vendor, is shown, it is sufficient. The bill charges that such was the case. The defendant in his answer denies this charge, and then proceeds to state that the complainant was in possession under a contract of rent. No evidence whatever is offered by the complainant, as to his possession; but it is insisted, that the possession being a mitted by the answer, the absence of evidence showing the contrary refers such possession to the contract. We agree that, where one who is out of possession makes a parol purchase, and immediately afterwards enters, under such circumstances as to create a reasonable presumption that the entry was made with the consent of, or acquiesced in by, the vendor, it then falls directly within the principle to which we have adverted. But we have found no case which goes so far as to hold that the mere possession of the land, without any further proof, will refer itself to the contract; on the contrary, the cases hold a different doctrine, and assert that it must appear that he took possession with the assent of the vendor.-Lord v. Underdunck, 1 Sand. Ch. 46; Lewis v. Smith, 1 Hoff. Ch. 470. It must appear that it could only have been done with reference to the contract.-Ellis v. Ellis, 1 Dev. Ch. 180; Anderson v. Chick, 1 Bail. 118; Hood v. Bowman, Freeman's Ch. 290; Aitken v. Young, 12 Penn. State R. 15; Owings v. Baldwin, 1 Md. Ch. Dec. 120. Under the influence of these authorities, if it were conceded that the answer virtually admitted the possession of the complainant, but denied that such possession was referable to the Price & Simpson v. Gillespie et al. contract charged, further proof would be required. This is not the case of a confession and avoidance. The charge is, that possession was taken under the contract, with the consent of the vendor. The answer expressly denies this, and refers the possession to another contract; and until some evidence is offered, which connects the possession with the contract which the bill charges, the vendor is not called upon to show that it was under a different agreement.-Bright v. Haggin, Hard. 536. The decree below is affirmed. PRICE & SIMPSON vs. GILLESPIE ET AL. [MOTION TO AMEND JUDGMENT NUNC PRO TUNC.] 1. Recital in judgment, unless shown by record to be untrue, sufficient to sustain it.—A recital in a judgment nunc pro tunc, that sufficient matter to authorize its rendition was disclosed to the court "by sufficient, competent, and satisfactory evidence," will sustain the judgment, if the parties appear to the motion, and do not show, either by bill of exceptions or in some other appropriate manner, that the recital is untrue. APPEAL from the Circuit Court of Lawrence. The appellants, suing as partners, obtained a judgment before a justice of the peace against Henry Gillespie and Lucy Gillespie, which was removed by certiorari, on the petition of the said Lucy Gillespie, to the circuit court. The plaintiffs there filed a complaint on a bond; to which Lucy Gillespie pleaded coverture, and her co-defendant nil debet. At the March term, 1855, a trial was had on issues joined on these pleas, when the jury found a verdict in favor of Lucy Gillespie, and against Henry Gillespie; and the court thereupon rendered judgment, that said Lucy Gillespie go hence without day, and that the plaintiffs recover of said Henry Gillespie, and of his sureties on the supersedeas bond, the amount of the debt and damages assessed by the jury, with the costs. Price & Simpson v. Gillespie et al. Henry Gillespie afterwards filed a petition in the court, directed to the clerk, alleging that an error had been committed in the taxation of the costs, and praying that the sheriff might be instructed not to collect the items erroneously taxed against him; and the clerk issued an order to the sheriff in accordance with the prayer of the petition. At the September term, 1855, the following judgments were rendered in the cause: "Came the parties, by their attorneys; and on motion of the defendant, Lucy Gillespie, it appearing to the satisfaction of the court that there has been an error committed by the clerk in the taxation of the costs, in failing to allow the said Lucy Gillespie an attorney's fee, and also in failing to allow her against plaintiff an aliquot proportion of the costs of this case in addition to said attorney's fee; and it appearing to the satisfaction of the court that the said Lucy Gillespie made a successful defence in this case: It is therefore ordered, adjudged, and decreed by the court, that said Lucy Gillespie recover of said Price & Simpson, plaintiffs in this case, a taxfee of $5, and one half of the costs incurred; and that she go hence without day." "Came the parties, by their attorneys; and defendants suggest that a manifest error has been made in the entry of the judgment in this case, at the last term of this court, in entering the same against John R. McBride and Henry A. McGehee, as the sureties of Henry Gillespie on an appeal bond in this case; and the said error appearing to the court, by sufficient, competent, and satisfactory evidence, on motion of the defendants, it is ordered, adjudged, and decreed by the court, that the judgment heretofore rendered in this case be revoked, annulled, and held for naught, and that the following judgment be rendered now for then: Came the parties, by their attorneys; and the said Lucy Gillespie pleads coverture, in short by consent, and the said Henry Gillespie pleads nil debet, in short by consent; and issues being taken, thereupon came a jury," &c., "who, upon the issues joined do say, 'We, the jury, do find the issues on the plea of coverture in favor of the defendant Lucy Gillespie, and the issue of nil debet on the other plea for the plaintiffs, and assess the plaintiffs' debt at $30 66, together with the further sum of $12 50 damages Price & Simpson v. Gillespie et al. by way of interest, together with their costs.' Thereupon, it is considered by the court, that the defendant Lucy Gillespie go hence without day, and that plaintiffs recover of said Henry Gillespie the said sum of $30 66 debt, damages, and interest, assessed by the jury as aforesaid, beside their costs," &c. The following errors are now assigned: "1. The court erred in setting aside, revoking and annulling the judgment rendered in this cause at the March term, 1855, by the judgment rendered at the September term, 1855. "2. The court erred in revoking, annulling and setting aside the judgment rendered against Henry Gillespie, and John R. McBride and H. A. McGehee, the sureties on the supersedeas bond, at the March term, 1855, by the judgment rendered at the September term, 1855. "3. The court erred in rendering the judgment nunc pro tunc at the September term, 1855, after the rendition of the judgment at the March term, 1855. 66 4. The court erred in rendering the judgment nunc pro tunc at the September term, 1855, upon the petition of Henry Gillespie to re-tax the costs." PETERS & HODGES, for the appellants. DAVID P. LEWIS, contra. RICE, J.-A recital in a judgment nunc pro tunc, that suf ficient matter to authorize it to be entered was disclosed to the court" by sufficient, competent and satisfactory evidence," will sustain it, if the parties appeared upon the motion to perfect the judgment, and do not show by bill of exceptions, or in some other appropriate manner, that such recital is untrue. Rains v. Ware, 10 Ala. R. 623. The entry made at the September term, 1855, of the circuit court of Lawrence, whereby the judgment rendered at the preceding term was "revoked, annulled, and held for naught," and another judgment substituted for it, is a judgment nunc pro tunc, and must be sustained upon the principle above announced. The first three assignments of error relate to that entry, and show no cause for reversal. The fourth assignment of error assumes that there was a judgment nunc pro tunc, rendered "upon the petition of Henry Gillespie to re-tax |