Moulton v. Harris

Vendor and Purchaser — Statute of Frauds—Verbal Contract of Sale —Part Performance. — The taking of actual possession of the land by a vendee, with the consent of the vendor, and making valuable improvements thereon on faith of the contract, is a sufficient part performance of a verbal contract for the sale of the land to take it out of the operation of the statute of frauds.

Id. — Exchange of Land — Specific Performance — Evidence — Assailing Title Admitted by Pleadings. —In an action to enforce the specific performance of a contract for the conveyance of land, where the plaintiff alleged that by the terms of the contract she traded her land for a band of horses and a tract of land of the defendant, and the answer of the defendant admitted plaintiff’s ownership of her land, and only raised an issue as to whether the defendant, at the time the contract was entered into, agreed to give his own land as part consideration for the plaintiff’s land, evidence on the part of the defendant tending to show that the land of the plaintiff is not hers in fact or in equity, as against her father’s creditors, is irrelevant and immaterial, and is properly excluded.

Id.—Note Securing Litigated Title — Waiver of Objection—Evidence ■—Payment to Assignee of Joint Payee.—Where a note was given by the defendant for the price of the land which plaintiff claimed the defendant agreed to transfer in part exchange for plaintiff’s land, and plaintiff claimed that the note was given because the title to defendant’s land was in litigation, and was not to be paid if a good title could be made to the property, and plaintiff waived objection to the title and asked for a conveyance of the land, and defendant contended that he never agreed to sell or transfer his land, but that the note represented a part of the purchase price which he was to pay for the plaintiff’s land, the exclusion of evidence offered to show a payment of the note is not prejudicial error, where the proof shows that the note was a joint one in favor of the plaintiff and another person, who assigned it without authority of plaintiff, and the defendant was permitted to testify that he paid to the assignee part of the amount of the note, and it appeared that the plaintiff never knew of or authorized the payment and received no payment whatever.

Id.—Disputed Terms of Verbal Contract — Evidence — Collateral Written Agreement. —Where the terms of an alleged verbal contract for the exchange of land, which has been partly performed, are in dispute, all facts and circumstances which may throw light on the true nature of the contract should be considered by the court, and it is error to exclude from evidence a collateral written agreement between the parties for the assumption of a mortgage on plaintiff’s land, tending to show that the contract is, as claimed by the defendant, for the purchase of plaintiff’s land on the terms testified to by defendant, and not for the exchange or transfer of defendant’s land as part of the consideration, as claimed by plaintiff,