This suit was brought by defendant in error against plaintiff in error to enforce the collection of two certain notes, dated January 5 and March 19, 1910, respectively, amounting to $425, with interest and attorney’s fees, and for the сollection of $750, alleged to be due him for two well-drilling machines sold by him to plaintiff in error, and for foreclosure of an attachment lien on 200 acres of land situated in Reagan county, levied upon as the рroperty of plaintiff in error.
By appropriate pleading, plaintiff in error alleged, first, that the land levied upon was the homestead of himself and family, and therefore not subject to forced sale; second, that during the year 1910, he made a parol sale of said land to defendant in error, whereby he agreed to convey the same to him in payment of $1,600 and the assumption on the part of defendant in errоr of the amount due from him to the state, as well as the payment of a $150 vendor’s lien note outstanding against it. Said $1,600 was to be paid by the surrender to plaintiff in error of the two notes, above referred to, and the delivery to him of said two well-drilling machines at $750, and the balance of $425 to be paid in cash; that, in pursuance of said agreement, defendant in error delivered said machines to plaintiff in error, and it was understood bеtween them that defendant in error would prepare a deed for the conveyance of said land, which should be forwarded, together with the cash payment and notes, to plaintiff in error for executiоn; that thereafter, on the 10th of May, 1910, defendant in error sent him by mail an unsigned deed, to be executed by himself and wife, wherein the 200 acres of land was to be conveyed to defendant in error for the recited cаsh consideration of $1,600, said deed being accompanied by a letter fully describing the land, and in every way disclosing the true contract between plaintiff and defendant, save and except that the considеration therein recited was incorrectly stated to be only $1,600, for which reason he declined to execute the same, averring that no part of said cash consideration has ever been paid him by defendant in error, nor have the notes been delivered to him; that, notwithstanding the fact that said land is the homestead of himself and family, and the only land owned by him, that he is now, and has been at all times, willing to carry out the contract as hereinbefore set out, praying for a specific performance thereof, or, in the alternative, if this cannot be granted, for damages against defendant in error.
Defendant in error, replying thereto, after denying the execution of any such contract as pleaded by plaintiff in error, sought to avoid the effect thereof by alleging that the same was not in writing; that it related to the sale and purсhase of land, and was therefore within the statute of frauds, and no suit could be maintained thereon for its enforcement.
The case was tried before a jury, and the court instructed them that the only contested issuе was as to the value of the well-drilling machines, directing them to return a verdict for plaintiff for the amount due on the two notes, and for the reasonable market value of said machines, with a foreclosure оf the attachment lien on the land. A verdict was returned, and judgment entered in accordance therewith, from which this appeal is prosecuted.
The evidence shows that some time in 1909, plaintiff in error, who was then living in Ballinger, where he owned a house and lot, exchanged the same for the land in controversy, declaring at that time an intention to subsequently make his home upon it. This was wild land, without any improvements whatever upon it, and inclosed in a large pasture, over which the plaintiff in error never at any time seems to have had any control. No'r was anything ever done by him toward improving it; and this was its condition at the time the attachment was levied *311 upon it. In the meantime, plaintiff in error had removed from Ballinger to Bowena, and subsequently to Sherwood and Merzton, in Irion county, where he was working at his trade as a carpenter. This land had been listed by him with real estate agents for sale; and he was endeavoring to sell it at the time it was levied upon. It was shown that he had stated that if he did not sell it he intended at some time to live upon it. He sought to excuse his delay in moving upon it by stating that at the time he traded for it he was engaged in work as a carpenter upon some buildings at Ballinger, and could not then leave, and later his horses died, and he was unable to go, and subsequent to this he did not leave on account of the fact that his children were in sсhool.
We do not think this evidence was sufficient to justify the court in submitting the issue of homestead to the jury. See Wiseman v. Watters,
In Wiseman v. Watters, supra, it was held, as shown by the syllabus, that, where the owners of land did not live upon it and rented it out, and there was no house thereon, a mere vague intention to make it a homestead in the future cannot render it such. For which reasons we overrule these assignments.
The deed referred to therein was in the usual form, reciting that Black, and wife, in consideration of $1,600, conveyed to Carl Hanz the land in controversy. Defendant in error objected to the admission of said letter and deed when offered, upon the ground that it was an attempt to show a contract for the sale of lаnd, and was not such a memorandum as was required by the statute of frauds, which had been pleaded by him in answer to the defendant’s plea for specific performance of the' alleged contract of the sale of the land.
It is said in Crutchfield v. Donathan, supra, that “there can be no question that, according to the current of authority, the agreement or memorandum thereof required by the statute need not be signed by both the parties, but only by him who is to be charged by it,” citing a long line of cases in support of the doctrine. Further quoting-from Addison on Contracts, it is said: “If an agreement has been made by word of mouth for the purchase and sale of an estate, and the purchaser signs a memorandum by which he agrees to buy the property for a certain sum from the vendor, and the vendor is ready to estаblish his title, and is willing and offers to convey the property to the purchaser, the latter cannot escape from his agreement to buy by saying that the vendor has signed no memorandum of the contract, and was nоt himself liable upon it by reason of the statute. Volume 1, § 213.” Continuing, the court says: “The objections to this construction of the statute, as stated by Lord Beedsdale, in Lawrence v. Butler, 1 Ch. & L. E. F. 13, are certainly forcible, and havе lead some courts, and at least one recent author, to reject it as unreasonable,
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notwithstanding the length of time it has been established by authority. Bing, on Sales of Real Property, p. 434 et seq;.; Thomas, Exeсutrix, v. Trustees of Harrodsburg,
We might add in passing that, while we think the court erred in excluding this evidence, and that the same, together with the testimony on the'part of plaintiff in error, authorized the submission'of the issue made by his pleadings for the consideration of the jury, still, in view of another trial, it is suggested that the plea setting up these issues should be made more specific.
For the error indicated, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.