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The opinion of the court was delivered by

Walker, J.

The contract in this case was concerning the title to land, and not being reduced to writing and signed by the parties, was within the Statute of Frauds.

No question is made but the two hundred dollars, which the *138plaintiffs seek to recover in this action, were paid by them to the defendant toward the agreed price of the land.

It appears from the referee’s report that the plaintiffs had no use of the premises bargained for under their agreement to purchase, and that they had no possession of the same, except they looked over the mill to determine what repairs and improvements were necessary to be made, and the plaintiff Welch took the key to the dwelling-house and had the defendant change the place of the running water and make some repairs to the floor of the house, which Welch painted.- They exercised no control over the premises as purchasers, and did not have any possession thereof to the exclusion of the defendant. After the defendant made his election under the agreement of May 21st, and notified the plaintiff Welch that he would take the plaintiffs’ note for the balance of the purchase money; payable in March, 1884, secured by a mortgage on the property bargained to them, the plaintiffs were ever ready and willing, and repeatedly offered to execute their note to the defendant for the balance of the purchase money, and secure it by a mortgage on the premises according to the terms of the agreement; but the defendant, when requested by the plaintiffs to deliver them a deed of the premises and close up the matter, declined to take their note and mortgage on the premises as agreed, and refused to have the deed delivered to the plaintiffs unless he could have a good note for the balance of the purchase money payable on demand, or the money; whereupon the plaintiffs informed him that they would compel him to pay back the two hundred dollars, for which this suit was brought.

The defendant’s refusal to deliver the deed and to perform the contract on his part, according to the terms thereof, rendered it wholly unnecessary for the plaintiffs to tender their note and mortgage to him. They wore ready to perform on their part, and, Avith the defendant’s refusal, did all the laAv required of them to establish their right to recover the purchase money paid by them to the defendant.

*139It is the universal rule upon this subject that when the party agreeing to deed refuses to convey according to the contract, and retains the possession of the premises, the party paying the purchase money may recover it back. What is done under the contract and in part performance of it is valid, and the rights of the parties in respect thereto may be enforced in a court of law.

Judgment affirmed.

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