This is a suit in equity brought by appellant against appellee to require specific performance of an alleged verbal contract to convey certain real estate, a lot in the city of Pine Bluff. Appellant owned and occupied the real estate in question, and mortgaged it to certain persons as security for a debt of $250, who foreclosed the mortgage in chancery, and appellee purchased the lot for $190 at a sale made by the commissioner of the court. His purchase was confirmed, and a deed was executed by the commissioner and approved by the coxxrt. The sale to appellee was confirmed, and deed made on October 12, 1897. Appellant alleges in her complaint herein that appellee, shortly after the conveyance to him of the property by the commissioner, entered into an oral contract with appellant, whereby he agreed that if she “would pay him the amount he had paid out he would cancel the mortgage and reconvey the property to her.” That she paid him the sum of $60 on sjaid purchase price, and that he executed to her in writing a' receipt for the same, which receipt, bearing date May 16, 1898, is exhibited with the complaint, and that he agreed with her that he would thereafter receive the balance of the principal and interest on the amount paid for the property. That she remained in possession of the property, and- made improvements thereon to the value of $25, *102paid some of the taxes, and thereafter offered to pay appellee the full amount of said agreed purchase price, but that appellee had refused to accept said sum or to perform his contract. She further alleged that appellee had wrongfully caused her to be ejected from said premises under a writ of unlawful detainer against one Eliza Denny.
The court sustained a demurrer to the complaint, and the plaintiff appealed.
The first and main question presented is : Does the complaint state facts, with reference to the alleged contract of sale of land, sufficient to satisfy the statute of frauds ? It is stated,' in substance, that appellant -occupied and formerly owned the land as mortgagor in possession, that while she remained in possession after foreclosure appellee agreed to sell her the land for a stated sum, and that she continued in possession, made valuable improvements, and paid a part of the agreed price.
It has been held by this court that delivery of possession of land to the vendee under a parol contract of purchase takes the case out of the operation of the statute of frauds. Pindall v. Trevor, 30 Ark. 249; Pledger v. Garrison, 42 Ark. 246. It seems to be well settled by the authorities generally that possession alone, without payment or other acts of ownership, is sufficient part performance of an oral contract for the sale of land to sustain a decree for specific performance. Browne, Stat. Frauds, § 467, and cases there cited. But possession alone, in order to be sufficient, must be taken pursuant to the contract and with reference thereto. Where the alleged purchaser is already in possession as tenant or otherwise, and merely continues in possession after making the contract, that -alone is not sufficient to take the case out of the operation of the statute. Under those circumstances the possession is referable to the original holding as tenant or otherwise. Browne, Stat. Frauds, § 476.
Consequently, this court held in Moore v. Gordon, 44 Ark. 334, that where the husband of one of the tenants in common, who purchased the interest of his wife’s cotenant under parol contract, had been in possession by virtue of his wife’s interest in .the land, his continued possession alone was not sufficient to warrant a court of equity in decreeing specific performance,-but that the making of • substantial improvements on the land "was sufficient *103to take the contract out of the statute of frauds. The court there said that “possession, to have that effect, must have been taken under the contract, and with a view to it, and in pursuance' of its provisions.”
While.the continued possession, because of the fact that it may be referable to the antecedent right and not necessarily to the new right or estate created by the contract, alone, is insufficient to prevent the operation of the statute, yet, when accompanied by some further acts, such as payment of part of .the purchase price or making substantial and valuable improvements which characterize the continued possession and make it referable to the new relation created by the Contract, the two together are sufficient to satisfy the statute.
In the recent edition of Pomeroy on Equity Jurisprudence, vol. 6, § 820, it is said that, “as possession must be taken in pursuance of a contract, a mere holding over by a tenant after the expiration of his lease is not sufficient part performance to take the case out of the statute. Where, however, there is a change in the terms of the tenancy, as, for instance, in the amount of rent paid, or where the tenant makes substantial repairs or improveents, such circumstance, in connection with the possession, is sufficient to warrant relief.”
Prof. Pomeroy, in his work on the subject of specific performance of contracts (section 124), says: “It is, therefore, now settled, after some expressions of doubt, and with a few conflicting decisions, that possession by a tenant after the expiration of his former term, and payment by him of an increased rate of rent, are together a part performance of a verbal contract for a renewal of the lease. In the like manner, such possession, either before' or after the end of the term, and a payment which could not be referred to the old rent, but could be explained on the supposition of a contract, should be part performance of a contract by the lessor to sell and convey the land”- — citing Lord Lough-borough in Wills v. Stradling, 3 Ves. 378, and other English cases.
The complaint in this case alleges that the plaintiff remained ■ in possession of land, paid part of the purchase price and a portion of the taxes, and made valuable improvements. These acts, taken together, constituted such part performance as took the case out of the statute of frauds.
*104It is contended by appellee that the cause of action in the complaint was barred by the five years statute of limitations. This Contention can not, for two reasons, be upheld: In the first place, this is not a suit to recover land held under a judicial sale. Appellant is not contesting the validity of the sale. She expressly recognizes its validity and the strength of appellee’s title thereunder, but she seeks a performance of appellee’s alleged agreement to convey that title to her. In the next place, it is alleged that appellant remained in possession, which prevented the running of the statute against her. The statute of limitation does not run against one in possession of land. Coleman v. Hill, 44 Ark. 452.
The complaint is defective in failing to allege the time agreed upon within which the contract was to have been performed, but the defect should have been met with a motion to make the complaint more definite and certain. It could not be reached by demurrer, as it was a cause of action defectively stated, and not a failure to state facts sufficient to constitute a cause of action. In the absence of an allegation of a definite time, the law presumes that the contract was to be performed within a reasonable time.
The chancellor erred in sustaining the demurrer, and the decree is reversed, and cause remanded with directions to overrule the same, and for further proceedings.