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: 30
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30 ANN BERTA LODGE V. LEVERTON. [Tyler Term,
Opinion of the court.
be sufficient to justify a court of equity in enforcing the
performance of an oral contract for the purchase of the
freehold and inheritance of such land, on the ground that
the transfer of the possession is a part performance of
such oral contract. Acts done in performance, it has been
justly observed, must be such as could have been done
with no other view or design than to fulfill the particular
contract sought to be enforced. A mere change of the
possession and seizin of the land is an equivocal act, open
to a variety of interpretations, and affords no'presumption
of a contract for the sale of the fee, but rather for a
contract for a lease, either at will or from year to year, or
for such time or period of time as may lawfully be granted
by word or mouth, and to permit a person who can show
no other act done, beyond the transfer of the possession
of the soil from the owner to himself, to set up and enforce
an oral agreement for the sale of the fee, would
practically repeal the statute of frauds, and let in all the
mischief which that act was' intended to guard against.
(Pages 157, 158.)
These quotations, it seems to us, show that the broad
and unqualified proposition which seems to be laid down
by the two authors first cited is not in accord with the
views entertained by the others. Yet it is to be noted,
with the exception of Cruise and Addison, all of the others
from whom we have quoted are cited by Browne and Story
in support of the rule as laid down by them; and in the
main all of them refer to the same adjudicated cases.
Many of these cases are not accessible to us. It is impossible,
without extending this opinion beyond all reasonable
compass, to advert to the particular facts and points
decided in such of these cases as are within reach. We may
say that we have found but one of them (Butcher v. Stapley,
1 Vt., 363) in which the performance of the contract
was decreed at the instance of the purchaser on the bare
fact of part performance by the delivery of possession,
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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/m1/38/: accessed July 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .