*174The opinion of the court was delivered, January 9th 1872, by
Thompson, C. J.
The learned judge below erred in admitting evidence to prove the value of the land out of which the action has arisen, under a parol sale, and in answering the plaintiff’s points as he did; also the points of the defendant on the same subject. We have so repeatedly announced that the rule in actions for damages for a breach of contract to convey, under a parol sale of real estate, is not to be measured by the value of the land, but by the consideration paid, and compensation for improvements made in clearing, fencing, building, planting orchards, &e., in reliance on the contract, deducting therefrom a reasonable rental for the use of the premises, that I will not encumber this opinion by citing them — they have often been cited in previous opinions. The only exception to the rule is, where there has been fraud on part of the vendor in the original contract. But the failure to convey is not such fraud. Buyer and seller both know that such a contract could not be enforced, and it was no more a fraud to refuse performance by conveying than any other breach of a contract to perform an act. While in a warn, as matter of form, the breach of the undertaking sued upon is, in actions on simple contracts, generally charged as fraudulent, the law gives no damages on that ground. Compensation to the plaintiff for his injury, in view of the consideration, is all that is required. The learned judge charged that if the defendant had it in his power to comply with his contract and did not do so, and “if he acted in lad faith towards the plaintiff, the measure of the damages would be the value of the land at the time he was evicted.” Bad faith was an indefinite term — it did not necessarily imply fraud, and did not indicate fraud in the contract. There was nothing showing anything like that in proof. The charge certainly had only the failure to convey in view in this remark; it was what the point asked. It was error therefore to affirm it: McNair v. Compton, 11 Casey 23; McKowen v. McDonald, 7 Wright 441. It is obvious that this ruling, if permitted to stand, would in most cases of a parol sale of land and failure to convey, be the equivalent of specific performance, differing only in this, it would transfer to the buyer the value instead of the property in specie. It would operate as a virtual repeal of the statute. This is not the rule of the cases in this Commonwealth by any means; and for these instructions the judgment must be reversed.
It is contended by the plaintiff in error that the learned judge also erred in refusing his 4th point. We do not concur in this. We agree with him that the 6th section of the Act of the 22d April 1856 presented no bar to the plaintiff’s right of recovery. This statute, which was designed to prevent fraud, is not to be so construed as to become an instrument of fraud; and it would be *175so if we were to sanction the construction contended for by the plaintiff in error. The plaintiff below claims that he contracted with his father for the land in question in 1844 or 1845; paid the greater portion of the purchase-money; entered into the possession with his permission, under the contract, and commenced improving, cultivating, building, &c., and has continued so to do for twenty-two or three years with his knowledge and acquiescence. When at last his father sold the land to another, he resisted a recovery on the common and usual opinion in such cases, that he had a right to hold it. Up to this time both parties acted in accordance with the original contract, excepting that the father did not convey, but often spoke of his intention to convey. It was very natural for the son to await his leisure. But having lost the land at last, and having instituted his suit to recover damages for the breach of contract in failing to convey, it is claimed that he is too late, that he should have brought suit within two years after the passage of the Act of 1856. The answer to that is, there was in fact no breach of the contract at that time. The plaintiff cannot, with either grace or honesty, say, “ My son, you ought not to have trusted in my promises; you should sooner have insisted on your deed or sued me for damages for not making it.” Being in possession of the land pursuant to a parol purchase, every day spent in cultivating and improving it, perfecting his title, he was guilty of no lachas, therefore, because he did not turn upon his father, demand a conveyance or damages for a failure to convey. If we were to hold as claimed, that such a case is within the Act of 1856, all that a vendor would have to do, would be to let his vendee by parol go on improving for five years, and then on some defect of such performance as is required to take the case out of the Statute of Frauds and Perjuries, turn him out of the possession of the land, and keep the improvements for nothing. Such a rule could never receive the sanction of any civilized community where such sales are allowed at all. In Clark v. Trindle, 2 P. F. Smith 492, followed in numerous cases since, we held that the limitation of the period within which proceedings to enforce resulting or implied trusts of land, under the Act of 1856, was controlled by the fact of possession being in the cestui que trust. The analogy of such a case is so close to the case in hand, that we rely on it as assisting in the interpretation to be given to the law of the latter. In neither case is laches to be attributed to the party in possession : Richards v. Elwell, 12 Wright 361. In the case of the sale, the purchaser is not bound to know, or even to suspect’ that the seller will not comply with his contract, and that he will not be permitted to hold the land under his purchase. He can stand on his possession under the contract until he is evicted. When that occurs, if not sooner, his right to damages most clearly accrues. Where no possession has ever been taken, the limita*176tion of the statute undoubtedly applies. No other error appearing than those above noticed, we reverse this judgment for the reasons therein given.
Judgment reversed, and venire de novo awarded.
Sharswood, J., dissented.