[875.] ANN BERTA LODGE V. LEVERTON. 23
Opinion of the court.
to have, in effect, excluded it after it was too late to bring
the evidence which would have warranted its admission.
Whether the plaintiff had, in fact,'paid for the land the
consideration mentioned in her deed, or any consideration
whatever, in no way concerned the defendants. It is not
controverted that the plaintiff was fully informed of defendants'
claim to the land when she took her deed; therefore,
whether she has paid the alleged purchase money or
not, she holds subject to whatever equitable right defendants
may have. If defendants have no title, whether the
deed to the plaintiff was made with or without consideration
is wholly immaterial to them.
2. Did the defendants show title, either legal or equitable,
to the half interest in the lot sued for?
It is not pretended that the defendants held under a
deed or other instrument of conveyance duly executed
and delivered to them by the party, her agent or attorney,
under whom they claim. Nor do they insist that they have
any contract, agreement, or memorandum in writing for
the sale of the undivided half of the lot in dispute, signed
by the alleged vendor, or by any one by her thereunto lawfully
authorized. But the sole ground upon which they
base their claim of title is a verbal contract, so far executed,
as they maintain, as to warrant a degree of specific performance
by a court of equity.
This presents the most important inquiry in the case,
and, indeed, the only one of serious difficulty. That the
full extent and hearing of the question, and the precise
point which we are called upon to decide, may be seen
and clearly understood, it is necessary to consider and determine
the facts or acts of part performance upon which
defendants' claim to a specific performance depends. In
doing this it is also to be borne in mind that the matter of
defense presented by this branch of the case is in the nature
of a confession and avoidance. And the facts relied upon
in evidence, but for our blended system of law and equity,
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed December 9, 2013.