71 Miss. 819 | Miss. | 1894
delivered the opinion of the court.
The doctrine that the invalidity of a contract under the statute of frauds cannot avail after the execution of the contract has no place in this case. Even according to the version of the contract between Nelson and Nelson & Perry, given by the latter, it had been executed only to the extent of cutting what trees théy wanted, and removing and paying for them, and the right they could convey by a sale of trees standing on the land and not felled when they paid Nelson, depended on what right they had by their verbal contract for the trees. It is conceded to be law that, if the contract was executory, it conferred no right, because not in writing. Harrell v. Miller, 35 Miss., 700.
That it was not executed as to trees standing on the land when Nelson was paid is clear, and they could not assign a greater right than they had by their void contract for the growing trees. Even if they paid for all, as they contend, they got no right to them further than the contract was fully executed. It was not executed as to any trees not felled by them.
Reversed and remanded for a neto trial.