28 Ala. 274 | Ala. | 1856
Regarding the contract for the sale of the land as fully proved, the only question is, whether such a part performance has been shown as will take it out of- the'statute of frauds. The rule is, that the act must be such as could be done with no other view than that of the agreement being performed, (Sugden on Vendors, 72);-and hence, if possession by the vendee, under the contract, with’ the consent of the vendor, is shown, it is sufficient. The bill charges that such was the case. The defendant in his answer denies this charge, and then proceeds to state that the complainant was in possession under a contract of rent. No evidence whatever is offered by the complainant, as to his possession; but it is insisted, that the possession being e mitted by the answer, the absence of evidence showing the contrary refers such possession to the contract. We agree that, where one who is out of possession makes a parol purchase, and immediately afterwards enters, under such circumstances as to create a reasonable presumption that the entry was made with the consent of, or acquiesced in by, the vendor, it then falls directly within the principle to which we have adverted. . But we have found no case which goes so far as to hold that the mere possession of the land, without any further proof, will refer itself to the contract; on the contrary, the cases hold a different doctrine, and assert that it must appear .that he took possession with the assent of the vendor. — Lord v. Underdunck, 1 Sand. Ch. 46; Lewis v. Smith, 1 Hoff. Ch. 470. It must appear that it could only have been done with reference to the contract. — Ellis v. Ellis, 1 Dev. Ch. 180; Anderson v. Chick, 1 Bail. 118; Hood v. Bowman, Freeman’s Ch. 290; Aitken v. Young, 12 Penn. State R. 15; Owings v. Baldwin, 1 Md. Ch. Dec. 120.
Under the influence of these authorities, if it were conceded that the answer virtually admitted the possession of the complainant, but denied that such possession was referable to the
The decree below is affirmed.