The opinion of the court was delivered by
Mr. Chief Justice McIver.
This was an action to recover possession of real estate. The facts of the case are so fully and clearly stated in the report of the master and in the decree of the Circuit Judge (both of which should be incorporated in the report of the case), that we deem it unnecessary to do more than to give an outline of the general facts necessary to a proper understanding of the two questions upon which this appeal must turn.
The land in dispute originally belonged to the defendant, *365Jacob F. Witt; and was sold by the sheriff under a judgment against him on the 6th of April, 1874. At that sale the laud was bid off by said Jacob F. Witt, in the name of one J. B. Watts, who paid the purchase money and took title to himself, under an alleged parol agreement made between Jacob F.' Witt, acting as the agent of his wife, the defendant, Cornelia J. Witt, and the said J. B. Watts, that said Witt was to bid off the land in the name of said Watts and have titles made to him, but when said Watts was refunded the purchase money, he was to make titles to the said Cornelia J. Witt. The master’s seventh fiuding of fact is in these words: “That some time in 1875, and after the purchase money of the land in dispute had been received by Watts from Mrs. Witt’s share in lumber sold, Witt and his wife, the said Cornelia J., requested Watts to make conveyance of the property to her, and he promised that he would do so; and that, at that time, Witt and his wife were in the exclusive possession of said land, claiming and holding the same as the separate property of the said wife, and they have ever since then continued in the exclusive and adverse possession of said land, as the property of said wife, the defendant, Cornelia J. Witt, and that neither the plaintiff or her husband and grantor, the said J. B. Watts, has ever been in the possession of said property, or any part thereof, under a claim of title thereto.” The master also finds as a fact, that on the 19th of April, 1875, the said J. B. Watts conveyed the land in dispute to the plaintiff herein, his wife, by a deed which was recorded 10th of January, 1876. But the master also finds as follows: “The consideration stated in the deed is $553; and it is also set forth therein, that said conveyance is executed in accordance with an agreement entered into between the said Bhoda B. Watte and the said J. B. Watts, at the time he purchased the said tract from the sheriff at public auction, the portion of the said agreement to be performed by the said Bhoda B. Watte having been fully performed by her. I am satisfied this paper was made without any consideration, and that it was executed for no other purpose than to defeat any claim that Mrs. Witt may have had in the land under the before mentioned agreement and understanding between Witt and *366Watts respecting the said lands;” and this finding of fact by the master is expressly sustained by the Circuit Judge.
Upon the facts as they appear in the report of the master and in the decree of the Circuit Judge, of which the foregoing is but a bare outline, two leading and controlling questions arise: 1st. As to the effect of the fact found both by the master and the Oii’cuit Judge, that the deed from J. B. Watts to the plaintiff, constituting one of the links in her chain of title, was tainted not merely with constructive, but with actual, moral fraud. 2d. Whether the defendant succeeded in establishing her claim to hold the land in dispute by ad verse, possession.
1 As to the first question, both the master and the Circuit Judge seem to have treated the question as if it had arisen in a case where the defendant invoked the active interference of the court to set aside a deed for fraud, where it may be true that, as held below, a court of equity would not exert its power to set aside a fraudulent deed, except at the instance of a party who shows that he has suffered or is likely to suffer some prejudice to his legal or equitable rights by such fraud; hence when it was held below (whether correctly or not we shall presently consider) that the defendant had no rights of either character, under the parol agreement above referred to, she was not in a position to question the validity of the fraudulent deed to the plaintiff. We are inclined to think, however, that such a view is not applicable to the present case. Hence the action is not of that character. On the contrary, it is an action brought by the plaintiff to recover possession of real estate, of which she never had possession, and her right to recover depends solely upon the establishment of her superior legal title. She must, under the well settled rule, depend entirely upon the strength of her owu title, and not upon the weakness of her adversary’s. A defendant in possession may either fold his arms and await the establishment of plaintiff’s title, or he may show a superior title in some third person, and until the plaintiff shows a title superior to all the world, the defendant is entitled to. retain possession. When, therefore, it appears that one of the links in plaintiff’s title is defective or void, for fraud or other cause, the plaintiff fails to estab*367lish superior title, and the action fails on that account. Any other view would permit a party to take advantage of his own wrong.
2 But waiving this, it seems to us that there is another ground upon which the ruling below must be held to be erroneous. That ruling rests upon the assumption that the parol agreement set up by the defendant was void under the statute of frauds. It has long been settled, however, that part performance will take a case out of this statute; and the practical inquiry here is whether there has been such part performance in this case as will have that effect. What is such part performance of a verbal agreement for the sale of land as will be sufficient to take the case out of the statute, is a question upon which much has been said in the various cases in which the question has arisen; and it must be admitted that there is no little conflict of opinion upon the subject. The doctrine that part performance of a verbal agreement for the sale of real estate will take a case out of the operation of the statute of frauds, is a creature of the Court of Equity, and rests upon the ground of equitable fraud (3 Pom. Eq. Jur., § 1409), or, as it is said in some of the cases, a court of equity .will not permit a statute designed to prevent frauds to be used as an instrument to effect a fraud. Without undertaking anything like a review of the cases, it is sufficient for us to say here that we think the rule upon the subject is well stated in a note to 8 Am. & Eng. Enc. Law, at page 742-3, upon the authority of Bechtel v. Cone, 52 Md., 698, and Rook v. Jameson, 67 Iowa, 202, in the following language: “Where everything has been done on both sides, save the mere delivery of the deed, so that the holder of the legal title has become a bare trustee, equity will compel the delivery.”
Now, in this case, it appears that the defendant, Cornelia J. Witt, was allowed to take and retain possession for about thirteen years after the parol agreement was made, and after the purchase money had been fully paid, and nothing remained to be done by either party except to deliver the deed, and under the rule she was entitled to specific performance of such agreement, and hence the deed under which plaintiff claims, having *368been made with intent to defraud her and defeat her right to specific performance, was absolutely void, and vested no title whatever in the plaintiff. Indeed, since the cases of Roberts v. Smith, 21 S. C., 455, and Sweatman v. Edmunds, 28 Id., 58, the question can scarcely be regarded as an open one in this State, for in both of those cases it was held, that one who purchases land and is let into possession, and pays the purchase money, is entitled to specific performance, and for all practical purposes must be regarded as the owner.
3 As to the second question, we are unable to concur in the conclusion reached by the Circuit Judge, and, on the contrary, think that the master took the correct view. It is proper for ns to remark, that we do not understand that the Circuit Judge differed with the master as to the facts, but only as to the legal inference to be drawn from the facts. The question of adverse possession is a mixed question of law and fact. It is very manifest from the reasoning of the Circuit Judge, that he based his conclusion upon this branch of the case solely upon the ground, that the defendants being in possession under the parol agreement with J. E. Watts, the character of their possession under said agreement could not be construed to be adverse until J. R. Watts or his grantee was notified that the defendants did not claim the laud under the parol agreement, but were asserting a claim to the land independent of said agreement; and this not having been done, the possession could not be regarded as adverse. In this we think there was error of law. The rule, as we understand it, is, that where one goes into possession of real estate under a parol contract to buy the same, he cannot claim to hold adversely to his vendor until the purchase money is fully paid; but when it is paid, he then holds, notin subordination to the rights of the vendor, but in his own right, and his possession from that time becomes adverse to the vendor; and if his possession continues for the requisite period, he acquires a title under the statute of limitations. 1 Am. & Eng. Enc. Law, 230. This doctrine has been expressly recognized in this State in the case of Ellison v. Cathcart, 1 McMull., 5, where it was held that “Possession and the payment of the purchase money is a good equitable title, and *369a possession of ten years under such a title is good under the statute [of] limitations.” The same doctrine has been recognized, impliedly at least, in several other cases. Richards v. McKie, Harp. Eq., 184; Secrest v. McKenna, 6 Rich. Eq., 72; Bank v. Smyers, 2 Strob., 28; and Blackwell v. Ryan, 21 S. C., 123. It seems to us, therefore, that in no view of the case can the plaintiff’s complaint be sustained.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the complaint be dismissed.