¶1concurred.
¶2Carpenter, J. Although the plaintiff showed title in himself to seven-eighths only of the property to which the injury is alleged to have been done, yet he was in exclusive possession of the whole, and therefore at any rate entitled to recover on the third count. Persons having a mere equitable interest, if in actual possession, may sue for an injury done by a wrong-doer to that interest. Of consequence, as it seems to me, if they can sue and recover, the nature and extent of their interest will enter into the question of damages, and I think may be shewn in order to ascertain their amount. A purchaser in possession under such contract for purchase as can be enforced, by the rule that equity will look upon things agreed to be done, as actually performed, has such an interest that he may sell or charge the estate, or convey it by devise, before the conveyance is executed : subject, of course, to the contract under which held. 1 Sugd. Vend. 279 (10th Ed.) So the vendee, being actually seised of the estate in contemplation of equity, must bear any loss which may happen between the agreement and conveyance, and will be entitled to any benefit which may accrue in the interim. 1 Ib. 276, 468.
¶3It is true these are rights for the most part enforced only in equity, but still it appears to me that they are rights which may be noticed even at law, for the present purpose, when the *9amount of injury received is the subject of inquiry. I am not satisfied there was any error in the admission of the testimony stated in the first bill.
¶4In regard to the second bill, I am inclined to think the evidence immaterial, and therefore its admission, as it did the party no injury, no ground of reversal.
¶5Judgment affirmed.
¶6Cited in Jackson v. Todd, 1 Dutch. 129-134; Freeman v. Headley, 4.Vr. 541.