1875.] ANN BERTA LODGE v. LEVErTON. 31
Opinion of the-co'art.
and even this ease is so briefly reported as not to preclude
all doubt whether there may not have been other facts
and circumstances in it. We find, it is true, the same
general rule which these authors lay down announed in
some of the other cases, but they were suits nost generally
where the vendor was seeking the execution of the contract,
or, if the purchaser was the plaintiff, there were
other facts besides the mere delivery of possession which
clearly authorized a decree. (Kine v. Balfe, 2 Ball and
Beatty, 343; Toole v. Medlicott, I Id., 393; Boardman v.
Mostyn, 6 Ves., 467; Lacon v. Mertius, 3 Atk., 3; Gunter
v. Ialsey, 2 Ambl., 586; Morphett v. Jones, 1 Swanst.
Ch., 172; C}ilan v. Cooke, I Scho. and Lefr., 22; Harris v.
Crenshaw, 3 Rand., 14; Shepherd v. Shepherd, 1 VMd. Ch.
Dec., 244; Owings v. Baldwin, 8 Gill, 337; Morris r. Harris,
9 Gill, 19; Pugh v. Good, 3 W. & S., 56; Allen's Estate,
1 W. & S., 383; Smith v. Smith, 1 Riebd. S. C. Eq.,
130; Keatts v. Rector, 1 Ark., 391.)
We make lno question, however, that many cases are to
be found in which decrees for performance have been had
(as says Sagden and Sir William Grant) upon part performance
by the defendant, though evidetltly, as they
think, it is contrary to sound principle. These cases were
probably decided upon the theory, which seems to have
been entertained at one time in son e courts, that where
there was a part execution of the contract, it mattered not
by which party, the statute was no longer applicable to it.
Although it is usual tp say that part performance takes
a case out of the statute of frauds, it is now, we believe,
universally conceded that such is not the ground upon
which courts of equity go in such cases. It certainly has
never been contended in this court that equity can enforce
such a contract upon any other ground than that of preventing
fraud. And as only the party in danger of being
defrauded can claim relief and protection from such fraud,
we are led to the inquiry, How is it necessary to decree 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 November 26, 2015.