| Ala. | Jan 15, 1845
— On the facts presented by the bill of exceptions, this case is, in principle, essentially the same as Cope v. Williams, 4 Ala. 362" date_filed="1842-06-15" court="Ala." case_name="Cope v. Williams">4 Ala. Rep. 362. Indeed the only distinction between them is, that there the defendant had possession of the lands, when here it was abandoned pending the suit. The statute of frauds, however, has no bearing on this case, 'as the action is not upon any contract in relation to the sale of lands. The contracts which the statute operates on, are those which are unexecuted, and in which the action has to be on the contract itself. ( Such was the case of Johnson v. Hanson, 6 Ala. 351" date_filed="1844-01-15" court="Ala." case_name="Johnson v. Hanson">6 Ala. Rep. 351, where the action was to recover a portion of the money due on the contract, which, being evidenced by no note in writing, we held that the plaintiff was not entitled to recover. Similar to this, would have been Meredith v. Naish, 3 Stew., 207" date_filed="1830-07-15" court="Ala." case_name="Meredith v. Naish">3 Stewart, 207, i£ the facts disclosed had not withdrawn it from the influence of the statute. Here the contract is executed, so far as the purchaser is concerned, by his having given his notes for the price agreed on. It is true, the contract is unexecuted on the part of the vendor, but this does not affect the other party, nor authorize him to avoid the notes he has given, because he has omitted to bind the vendor. If, when called on, according to the express, or implied terms of the contract, to execute the necessary titles, the vendor had refused, the notes might, probably, have been avoided, in consequence of the failure of the consideration for which they were given; but there is no pretence to avoid them, so long as the vendor was willing, and able, to perform every thing which, in good conscience, he was bound to do.
Judgment reversed and the cause remanded.