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. Page: 26
2G BANN BERTA LODGE V. LEVERTON. [Tyler Term,
Opinion of the sourt.
at that time, or even by a mere tenant, were not made
until after the refusal of the vendor to carry out the contract
made with her agent. It is well settled, when the
purchaser has been fully compensated for his improvements,
or has gained more by his possession than he has
expended in improvements, they will not avail him as a
ground for specific execution. (Wack v. Sorber, 4 Wheat.,
387; Eckert v. Eckert, 332; O'Reily v. Thompson, 2 Conn.,
The tender of the purchase money certainly cannot be
insisted upon as a part performance of the contract, which
will authorize the interpretation of the court. No case
has been cited, and we have found none which intimates
that relief can be had on any such ground. To so hold
would be in effect to say the refusal to carry out the verbal
contract, upon which the statute says the party shall not
be charged, gives a court of equity the right to enforce it,
which would be manifestly absurd.
If, then, neither improvements such as were made by
defendants nor tender of the purchase money support
defendants' claim of title by their verbal contract, they
are forced to stand upon delivery of possession of the undivided
half of the lot, they owning at'the time the other
half, and if it is not sufficient, then defense must fail.
Will the delivery of possession of land under a verbal
contract authorize, a decree of specific performance in favor
of the vendee? Counsel have argued this question as if it
was definitively and conclusively settled by an unbroken
series of decisions in this court, beginning under the Republic
and ending with a case decided during our last
term at Austin. Looking at the question from what wq
may suppose to have been the standpoint of counsel, that
the alleged improvements were of such a character as td
aid their demand of a specific execution, on the ground of
part performance of the contract by delivering of posses;
sion, his conclusion is not to be controverted. But cerL
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/34/ocr/: accessed July 24, 2016), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .