Thе appellant brought this suit to recover of appellee a sum due upon a promissory note, and to enforce a vendor’s lien upon a tract of land. The defendant, the appellee here, pleaded in reconvention, alleging that he had sold to the plaintiff by a parol contract а parcel of land in the town of Rockwall, for which the latter had agreed to pay the sum of $1000, as follows: He was to pay off a certain promissory nоte given by the defendant to one Whit-comb for a part of the purchase money of the lot upon a previous sale by Whitcomb to defendant, and the bаlance of the $1000 on the 1st day of November, 1889; that plaintiff had paid $420.50 in full discharge of the note for $340, but that the sum of $579.60 was still due him and was unpaid. He tendered a deed to the plaintiff to the lot, and prayed for a judgment for the amount still due him, less the amount of the note sued on by plaintiff, and asked for a foreclosure of the vеndor’s lien. Upon the trial he obtained a judgment according to the prayer of his petition, and the plaintiff now appeals.
The plaintiff’s cause of action was admitted upon the trial. The defendant proved by his own testimony the contract with the plaintiff as alleged in his plea in reconvention; and further testified, that the plaintiff paid Whitcomb $140 upon the note, but declined to pay the balance on account of some difficulty about the title until the lot should be sold аnd bought in under Whitcomb’s lien, and proposed that this should be done in order to perfect the title; that he consented to this arrangement and accepted service of a citation in a suit brought by Whitcomb to enforce his lien; that judgment was rendered and the lot sold and bought in by the plaintiff for the sum of $280.50, an amount sufficient to discharge the balance of that note. He also testified, that after his contract with the plaintiff he put him in possession of the lot, and that he had ever sincе continued to hold possession of the property.
The plaintiff also testified in the case, and in effect admitted the sale of the lot to him by the defendant upon the terms alleged. He, however, denied having been a party to the agreement for the foreclosure of Whitcomb’s lien by the judgment of the court, аnd asserted in effect that before the foreclosure sale he had determined not to carry out the contract with the defendant, and that he bought the property at that sale on his own account.
*257 The plaintiff objected to the testimony of the defendant in reference to his promise to pay the nоte held by Whitcomb, upon the ground that “if said agreement was ever made it was a promise to pay the debt of another, and was not evidenced by any memorandum or contract in writing signed by the plaintiff Morris, the party to be charged. ’ ’
The court correctly overruled the objection and admitted the evidence. The consideration for the lot was $1000, a part of which the plaintiff promised to pay Whitcomb in satisfaction of a debt "due the latter by defendant. This, it is true, was a promise to pay the defendant’s debt, but it was also a promise to pay in part the plaintiff’s own debt. That such a promise is not within the statute of frauds has been decided by this court. Spann v. Cochran,
But the case presents a more serious question growing out of the statute of frauds. The court charged the jury in effect to find а verdict for the defendant, if the defendant by a verbal agreement sold the plaintiff the lot and the plaintiff verbally promised to pay him $1000 in consideration of such sale. The charge is assigned as error. In Crutchfield v. Donathon,
The defendant can not recover upon the case made in his plea in re-convention. But should he amend and establish the facts to whiсh he testified upon the trial he would be entitled to a judgment. The part performance to take a case out of the operation of the statute must be by the party who seeks to enforce the contract. The taking possession and making valuable improvements by the vendee will as a general
*258
rule еntitle Mm to a decree of specific performance (Ann Berta Lodge v. Leverton,
It is also complained that the court erred in permitting the defendant to read in evidence, over the plaintiff’s оbjection, the petition, judgment, order of sale, and sheriff’s return in the case of Whitcomb v. Gaines et al. That suit was founded upon the note which was given by the defendаnt to Whitcomb for the purchase money of the lot, and which the plaintiff had promised to pay; and it was under the decree and order of sale in that cаse that plaintiff acquired the legal title to the lot. Under the existing state of the pleadings the evidence was irrelevant and should have been excluded; but if defendant shall amend his plea in accordance with the facts testified to by him it will be material. It will be admissible for the purpose of showing that the plaintiff had aсquired the legal title to the land and as a part of proof essential to show that the defendant will be defrauded if not allowed to enforce the contract.
For the errors pointed out the judgment is reversed and the cause is' remanded.
Reversed and remanded.