The plaintiff has the legal title to the land in controversy, and is therefore admittedly entitled to recover unless the defendant has some equity to restrain him. The defendant alleges that the plaintiff by parol agreed to convey the lot to him on the payment of $150 ; that he thereupon entered into possession and put up improvements to the value of $150 ; he admits that he has never paid the plaintiff the purchase money and is unable to do so. He contends that he ought to be allowed the value of Ids improvements, or at least that the premises be sold and any excess they may bring over the purchase money, and damages for withholding the possession, and the costs of this action, may be paid to him.
It may be observed that although the contract was originally by parol and could not be enforced, yet as the plaintiff in his replication acknowledges the contract and offer’s to perform his part of it on performance by the defendant, the defendant does not need any decree of a court to give him that relief. It is competent for him to sell his estate in the premises, and if he can obtain for them a price in excess of the just demands of the plaintiff, the excess will be his, unless the plaintiff will have in that event a right to tack on his subsequent loan of $100. As no case is before us calling for any opinion as to the plaintiffs right in that respect, we express none.
If the defendant cannot sell his estate in the premises sub ject to the plaintiff’s claim, for anything, the inference is clear that although his improvements have cost him something, they have added nothing to the value of the lot.
Beyond the remedy indicated, the defendant has no equity or title to relief. He relied in the argument on the ease of Albea v. Griffin, 2 Dev. & Bat. Eq., 9, and others, to the effect that if a vendee by parol paid part of the purchase money, or entered and made improvements, although he could not enforce a specific performance on the ground of part performance, yet the vendor would not be allowed to turn him out without repaying what of the purchase money had been paid *505and making compensation for tbe improvements. Obviously the present case does not stand on the same footing. Here the vendor does not set up the statute of frauds, but waives it, and is both willing and able to comply. The defendant alone is in default.
There is no error, and the plaintiff is entitled to judgment for the possession of the premises on the pleadings. The pleadings are so irregular, that we are somewhat at a loss what judgment ought to be given here. The replication is a departure from the cause of action alleged in the complaint; it contains irrelevant matter and offers no material issue. The rule, however, is that no matter at what stage of the pleadings a demurrer is put in, the court will look at all the pleadings and give judgment in favor of the party entitled. The Judge was right, therefore, in giving judgment for the plaintiff for possession. He might, however, on the request of the plaintiff, have caused a jury to be impannelled to assess his damages. This he did not do, and it does not appear that the plaintiff requested it. In the absence of such a request, we do not feel called on to remand the case in order that damages may be assessed. We therefore merely affirm the judgment below, with costs in this court.
Let this opinion be certified.
Pee CuRiam. Judgment affirmed, with costs to the plaintiff in this court.