4 Indian Terr. 597 | Ct. App. Ind. Terr. | 1903
In this case the appellants have failed to file with their brief any specification of errors, as required by rule 10 of this court, 4 Ind. Ter. Rep. p--(64 S. W. vi), further than to say: “ In the discussion of this case we shall direct our attention to two propositions: First. That the only title or the
Assuming that this is intended' as appellants’ .specification of errors, it will be observed that the two questions presented for our consideration are: First. Does the proof of this case show a legal parol gift of the land in controversy by Thomas Graham, the plaintiff’s grantor, to the defendants? Second. That if the gift was not valid under the law, or was insufficient to divest Graham’s title, was it not sufficient to terminate the relation of landlord and tenant as to Graham, and the defendants, and make the defendants’ possession adverse, by reason of its being color of title? All of the parties to tlie suit are Chickasaw or Choctaw Indians, and the land is in the Chickasaw Nation. The Chickasaw laws, nor any portion of them, are neither pleaded or proven, and therefore the court below could not, nor can we, consider them (Wilson vs Owens, 86 Fed. 571, 30 C. C. A. 257); and therefore the law of the forum prevails. Section 3371 of Mansfield’s Digest (Ind. Ter. St. 1899, § 2305), which is the law of this jurisdiction, provides: “That no action shall be brought * * * to charge any person upon any contract for sale of lands, tenements or hereditaments, or any
As to the possession of the land by the defendants under the gift, it is the lawr that ‘a tenant may, during the term of his tenancy, -enter into a contract to purchase the land, and the relation between himself and his landlord will thereupon change from that of landlord and tenant to vendor and vendee. Thus when a lessor gives to the lessee an option to purchase, and the lessee exercises his option, he is no longer a tenant, but'a vendee.” Amer. & Eng. Enc. Law (2d Ed.) vol. 18, p. 167. But, when the contract is verbal, before the relation of landlord and tenant is changed to that of vendor and vendee there must be such a part performance of the contract as to take it out of the statute of frauds. Starkey vs Starkey, 136 Ind. 349, 36 N. E. 287. And when that oral conveyance is a .gift, as we have seen, that part performance must be the expenditure of money by the donee
As there was no proof to sustain the material averments of the answer absolute^ necessary to be proven by the defendants to defeat the plaintiff’s action, the court did not err in peremptorily instructing the jury to find their verdict for the plaintiff.
The judgment of the court below is affirmed.