24 ANN BERTA LODGE v. LEVERTON. [Tyler Term,
Opinion of the court.
could only have been made available to the defendants by
invoking the aid of a court of equity, in doing which they
would have become the actors, and would have had to
make, by distinct, clear, and specific averments, a case authorizing
a decree for the performance of the contract they
set up. Unquestionably, when a verbal contract, whether
fully or partially executed, is relied upon in our courts,
though merely by way of defense against the legal title,
the laboring oar is upon the defendant, and he must make
out such a case as would entitle him to a decree of title, if
he was seeking it.
We do not deem it necessary to consider whether such
defense may be made under the plea of not guilty or must
be presented by a special answer. There was no material
difference in the averments of defendants' special answers
presenting this defense, to which plaintiff's exceptions were
sustained, and the evidence in its support, which was submitted
to the jury under the plea of not guilty. We shall
therefore consider the sufficiency of the defense, whether
presented by the ruling of the court on the exceptions to
the answer, objections to evidence, or the instructions refused
or given the jury.
The defendants allege that they made a verbal contract,
by which they purchased the undivided half of the lot in
controversy from Mrs. Chambers, through her agent and
attorney, for the sum of two hundred and fifty dollars;
that said sale by her agent and attorney was made at her
instance, and after being made was approved and ratified
by her, and she and her agent agreed that, as soon as it
could be conveniently done, she would execute and deliver
them a deed for the same, and that defendants were placed
in possession of the lot by ler agents, and were still in
possession under said contract; that about four months
subsequently to the making of said contract and entering
into possession, they tendered the purchase money to Mrs.
Chambers' duly-authorized attorney in fact, and demanded
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 November 29, 2015.