#### The Overseers of the Poor of the Town of Augusta *against*The Overseers of the Poor of the Town of Paris.

If under a parol contraction* the sale or ámoúntin£at© more venty-five dollars» ,of> consideration, be paid by the purchaser, but no given, or possession taken by him, this is not such a purchase of an estate as will gain a settlement.

It seems, that the equitable estate acquired by the purchase of land for seventy-five dollars, and actual payment of the whole consideration, although no deed is given to pasa the legal title, will gain a settlement.

IN ERROR, on *certiorari*to the Court of General Ses' sions of the Peace, of the county of *Oneida.*

*Ruth*Gilbert, and the six infant children of herself, and her husband, *John Gilbert,*were removed, by an order of two . *1 7 7 **Jushces, dated the 5th of February, 1817, from the town of *n • i*_ . *Jrans*to the town of *Augusta,*which order adjudicated the *280settlement of the paupers to be in the latter town. The overseers of the town of *Augusta*appealed from the order, fjjg Court of Sessions of the county of Oneida, where it was affirmed. On the hearing of the appeal, *Caleb Gardiner ¿*^ * ■* the only witness sworn, testified, that *John*Gilbert, the husband of *Ruth Gilbert*the pauper, contracted with him by parol, for twenty acres of land in *Augusta,*and paid, towards the land, a cow valued at 25 dollars, another cow valued at 20 dollars, and certain promissory notes, for something more than 40 dollars, which were duly paid.

The case on the return, was submitted to the Court, without argument.

Spencer, Ch. J. delivered the opinion of the Court;

It does not appear that any deed was given by *Gardiner*to *Gilbert,*nor whether *Gilbert*occupied the land, nor what the entire price of the land was. It may fairly be presumed,that the consideration for the land exceeded the payments made, from the fact that no deed was given, and that the witness speaks of the payments as being made towards the land. In the case of *Schaghticoke*v. *Brunswick,*(14 *Johns. Rep.*260.) we decided, that the mere contract for the purchase of an estate, was not sufficient for the acquiring a settlement by this mode, and that, although the statute makes use of the term purchaser, it necessarily implies that a title must be given. In the case of *Whitestown*v. *Constable,*(14 *Johns. Rep.*469.) the question, as to the kind of purchaser contemplated by the statute, came under examination again; Mr; Justice *Van Ness,*who delivered the opinion of the Court, explains, correctly, the meaning and intention of the statute. He says, an indefeasible equitable interest has been considered sufficient to bring the purchase within its provisions; and that he can see no reason, why an equitable interest acquired by a purchase, and payment of 75 dollars, if it be clear and indisputable, should not give a settlement under the statute $ and he seems to suppose, that the payment of the whole consideration money, although no deed was given, would be a purchase within the statute.-

Here, however, it is not shown, that the whole consideration money was paid, or that possession was taken of the purchased land; and this it was incumbent on the town of *281
      *Paris*to have proved. For aught we know, the bargain was abandoned, from the inability of *Gilbert*to fulfill his contract. Where there has been no title acquired, a state of facts ought to be proved, clearly showing, that the purchaser acquired a clear equitable right to have the title perfected. The statute contemplates two things; the ability of the purchaser to pay ; and his actually paying 75 dollars, in order that the payment shall acquire to the purchaser an estate or interest in lands. In this last respect, the proof is manifestly defective.

Order of Sessions reversed-.