Parrill v. McKinley

58 Am. Dec. 212 | Va. | 1852

Allen, J.

delivered the opinion of the court.

The court is of opinion, that the contract of exchange in the bill mentioned is fully proved by the evidence in the record; and having been executed by the delivery of possession and acts of ownership each party over the parcels of land exchanged, there is proof of sufficient part performance to take the case out of the operation of the statute. And the court is further of opinion, that the making of the deed and the signing and acknowledgment thereof by the appellee Wm. McKinley was a sufficient memorandum in writing according to the authority of Bowles v. Woodson, 6 Gratt. 78. The court is therefore of opinion, that upon the proofs in the record the appellant would have been entitled to a decree for a specific execution of the contract of exchange set forth in the bill. But it furthermore appearing by the records and proceedings in suits of Hambleton and Denham, and of Keith and Camp against the said McKinley and others, filed as exhibits, that all the lands of said Wm. McKinley were bound by a judgment lien prior in date to the time of said contract for exchange, and that a decree was rendered for the sale of his lands, and the same or portions thereof, have been sold, the court upon the facts disclosed upon said exhibits, should have directed an enquiry to ascertain whether any title to the Buffalo land in the bill mentioned could be made to the appellant, and if not, to have authorized him to amend his bill and seek for a rescission of the contract, and for such other and further relief as under the circumstances he might show himself entitled to.

Decree reversed with costs 5 and the cause remanded to be proceeded in according to the principles above declared.