74 Tex. 69 | Tex. | 1889
This suit was brought by appellant to try title to land. Plaintiff claims under James G. Tinnin and defendants claim under A. M. Tinnin.
The land belongs to plaintiff unless James G. Tinnin sold it about the
The court found as a conclusion of fact that “James G-. Tinnin sold the land to A. M. Tinnin for a valuable consideration paid to him, and put said A. M. Tinnin in actual possession, which he held for some years, and that soon after taking such possession said A. M. Tinnin built, of material on the place, a hog pen or ranch and some other small improvements.”
The court found this to be a valid sale and gave judgment in favor of defendants. Appellant complains that the findings as to- possession and improvements are not sustained by the evidence.
The contract of sale was proved by one witness, at the time a servant of A. M. Tinnin. He says he heard the contract, and that A. M. Tinnin gave James Tinnin thirty-three bales of cotton and ten brood mares for the land, and that A. M. Tinnin put on the place a hog pen, containing about one-half acre. He testified further that A. M. Tinnin kept a tenant on the land in charge of his hogs for about six months after he purchased it, and that shortly after that James G-. Tinnin moved the only houses on the place away. It appears that nobody occupied the place afterwards. No other improvement than the one mentioned by the said witness is proved to have been put on the place by A. M. Tinnin.
The court found as a conclusion of law •'r that the verbal sale of the land in controversy by James G-. Tinnin to A. M. Tinnin, possession given and purchase money paid (although no improvements made that I consider either permanent or valuable), raises a sufficient equity to defeat plaintiff’s action for defendant’s interest in the land under A. M. Tinnin, although it might not be sufficient to have an action for specific performance.” We cannot concur in this conclusion. If A. M. Tinnin neither acquired the legal or equitable title to the land his vendees can not hold it against the legal title. It is clear that he did not acquire the legal title by the parol contract, and if he did not acquire such an equitable right as a court of equity may specifically enforce the transaction can not constitute a defense to this suit. The only question to be determined is whether the facts show such a transaction as should be specifically enforced.
The rule in this State is well established that verbal contracts for the sale of land will not be enforced without proof of possession and valuable improvements permanent in character or of other facts making the transaction a fraud on the purchaser if not enforced. Ann Berta Lodge v. Leverton, 42 Texas, 25; Robinson v. Davenport, 40 Texas. 342.
It has been held that it can not be “maintained that any character of improvements or repairs made on the premises, of however little value, will
In the case of Ann Berta Lodge v. Leverton, Justice Moore says: “Although it is usual to say that part performance takes a case out of the statute of frauds, it is now we believe universally conceded that such is not the ground upon which courts of equity go in such cases. It certainly has never been contended in this court that equity can enforce such a contract upon any other ground than that of preventing fraud.”
The improvements placed upon the land by the purchaser in this case can not be estimated as of any importance. The payment of the purchase money alone was decided not to authorize a decree for specific performance of a contract like this in the cases of Garner v. Stubblefield, 5 Texas, 560, and Wood v. Jones, 35 Texas, 66.
The case of Ann Berta Lodge v. Leverton was very much such a case as the one now before us.
That was an action of trespass to try title, brought by the holder of the legal title against a party in possession under a parol contract of purchase, and the purchase money had been tendered, which was equivalent to its payment proved in this case.
In that case plaintiff recovered the property and this court affirmed the judgment.
However well it may be settled in other jurisdictions that specific performance of parol contracts for the sale of land will be enforced on proof of the purchaser being placed in possession by the vendor in pursuance of the agreement, and notwithstanding the weight of authority elsewhere may support that rule, the contrary is too well settled in this State to be now departed from.
Such possession with payment of the purchase money and improvements of a permanent character enhancing the value of the premises, or such possession without improvements connected with other circumstancs making the transaction a fraud upon the purchaser if the agreement is not enforced, will take the case out of the statute of frauds.
The rules controlling the question being the same when the suit is brought by the seller for possession as when brought by the purchaser for specific performance, the judgment in this case must be reversed and the cause remanded.
Reversed and remanded.
Delivered May 17, 1889.
