The opinion of the Court was delivered by
Rogers, J.
By the original lease of the 31st of January 1824, the lessees became entitled to a freehold, during the life of Margaret Johnston, subject to an annual rent of 50 dollars. And it was further agreed, that if, at the expiration of that time, they should pay the lessor 1000 dollars, he agrees to convey all his interest in the premises to the lessees, or the survivors of them. The lessees entered and occupied the property until the spring of 1828; and at that time, Andrew, the lessor, having sold, or having agreed to sell, one half of the land, proposed, that if William and Margaret Johnston would leave the demised premises, and remove to the land in dispute, they should hold the same, on the terms stated in the lease; or that, after the expiration of one year, he would restore them to the possession of one hundred and eight acres of the premises, on *372which they then lived. The terms were accepted, and William and Margaret Johnston, removed to the land in dispute, and continued to reside there ever since. The ejectment is brought on the ground of the act of assembly of the 21st of March 1772, by which a writing is made necessary for the passing of any estate or interest in land. It is undoubtedly true, that an agreement for the exchange of land is within the statute of frauds, and must be in writing. 15 Johns. Rep. 503; Price v. Peel, Co. Lit. 447. But the specific execution of a parol agreement for an exchange, will be decreed in equity, when the agreement has been carried into effect, in whole or in part. Although I do not find this point expressly adjudicated, yet it comes within the spirit of decisions, which have been made in this state. A partition is in some respects analogous to an exchange, and in Ebert v. Wood, 1 Binn. 216, it is held, that a parol partition between tenants in common, made by marking a line of division on the ground, and followed by a corresponding separate possession, is good, notwithstanding the act for the prevention of frauds and perjuries. But whether this be technically an exchange, (the word exchange not having been used by the parties,) or the surrender of the original lease be viewed as the consideration for the interest acquired on the premises in dispute, the effect will be the same. If the consideration had been the payment of a sum of money, or any article of value whatever, the performance of the contract would have relieved the case from the objection that the agreement was by parol. And in what respect there is any distinction between the cases is not very apparent. The lessees have surrendered their interest in the one tract for an equal interest in the tract in question. The construction which has been given to the act, is founded on two principles; first, that where the parties have acted on their agreement, there is no danger of perjury in proving it; and secondly, because it is against equity that a man should refuse to perfect an agreement, from which he had derived benefit, by an execution in part. In the case at bar, the parties have acted on their agreement and it would be against equity to permit .the plaintiff to recover. It would be impossible for him, (if he wished,) to replace the defendants in the same situation as before the contract. The lessees were in the possession of the whole tract, under the original lease, and part of this, about one half, has been sold to Dunlap. By the agreement for an exchange, the lessees were to have their choice, either to remain where they are, or to return and occupy one hundred and eight acres of the original tract. They elect to remain. And even if the right of election was in the lessor, it does not appear, that he offered to restore them.to the possession of that part of the tract. We are of the opinion, therefore, that the court erred in rejecting the evidence, and that the judgment should be reversed.
Judgment reversed, and a venire de novo awarded.