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: 29
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1875.] ANN BERTA LODGE v. LEVERTON. 29
Opinion of the court,
cree the performance of them, in order that one side may
not take advantage of the statute to be guilty of fraud."
"But if possession be delivered to the purchaser, the
agreement will be considered as in part executed, especially
if he expends money in building or improving, according
to the agreement; for the statute should never be
so termed, construed, or used as to protect or be the means
But that he intends to be understood that it is only at
the instance of the party as to whom the failure to execute
the contract would operate as a fraud who can complain,
is clearly shown by a subsequent paragraph, in which he
says: "In some of the cases it has been decided that acts
done by the defendant to his own prejudice could be made
a ground for compelling him to perform the agreement;
but Sir William Grant held the contrary, where there is
no prejudice to the plaintiff, because the ground on which
the court acts is fraud in refusing to perform, after performance
by the other party;but where the defendant-has,
for instance, paid the auction duty or purchase money, it
it is no fraud on the vendor, but loss on himself, which
ought not to be made a ground for a specific performance
against himself." (Sudg. on Vend., ch. 3, sec. 7, par. 2,
5, and 17.)
We will extend these quotations by only one additional
extract, which we make from Addison's work on Contracts.
He says: "But in equity the purchaser so let into possession
will be entitled, it is said, to a conveyance of the
estate, and the court of chancery will compel the vendor
to execute such a conveyance, notwithstanding the provisions
of the statute of frauds, on the ground that there
has been a part performance of the contract, and that possession
having been given and accepted in fulfillment of
the bargain, it would be fraudulent in either party to withdraw
therefrom without the consent of the other. But the
mere naked transfer of the possession of land can hardly
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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/m1/37/?rotate=270: accessed February 21, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .