1875.] ANN BERTA LODGE V. LEVERTON. 27
Opinion of the court.
tainly none of the cases to which we are referred support
the proposition that bare possession, under a verbal contract
for the sale of land, will warrant a decree of specific
performance of the contract on the application of the purchaser.
We believe that we have examined every decision
which has been made by this court bearing on the question,
and if it has been so decided in a single instance it
has escaped our observation. Nor have we found even an
intimation, in any of the numerous cases on the subject of
specific performance of verbal contracts for land, that such
a proposition, if before the court, would have met its approval.
The absence of any such decision or intimation is
strongly persuasive that the contrary has been regarded
by the bar and bench as the recognized rule in this State.
We are fully aware that it is said, by commentators of
the greatest learning, and not without the sanction of adjudged
cases in courts of the most pre-eminent authority,
that possession alone is such part performance of the contract
as to authorize its enforcement. That it is sufficient
to warrant a decree for the performance of the contract, is
laid down by a standard work on the statute of frauds, in
the following plain and unmistakable terms:
"And it is well settled that possession alone, without
payment or other acts of ownership, is sufficient part performance
of a verbal contract for land to sustain a decree
for its specific execution." (Browne on St. Fr. sec. 467.)
"When the purchaser goes into possession, and rests
upon that act, his claim for specific execution of the contract,
the reason assigned for allowing the claim is, that if
there is no agreement valid in law or equity he is made a
trespasser, a position which would amount to a fraud practiced
upon him by the vendor." (Id., sec. 469.)
The same rule is recognized by Judge Story. He seems
to think it grows out of the necessity of the party placed
in possession going into the evidence of the parol agreemient
for his defense against a charge of trespass, or in a
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 January 30, 2015.