
    Watkins v. Gilkerson.
    An agreement to locate land certificates and procure patents in consideration of part of the land is not within our statute of frauds, and is not required (o be in writing. (Note Gd.)
    Appeal from Busk. The petition disclosed the following facts : In the year 1840 one Kobert Gilkerson, deceased, placed in the hands of the appellant tiie following land claims, to wit, tiie bounty land warrant of Francis Gilkerson for one thousand two hundred and eighty aeres of laud, the donation land claim of tiie said Francis for six hundred and forty acri-s, another bounty land claim in the name of said Francis, and also his own head right certifícale for three hundred and twenty acres — in all, claims to (lie amount of two thousand eight hundred and eighty acres of land. At the time said claims were placed in the hands of said appellant, it was agreed upon the part of Watkins that lie was to locate, have surveyed, and patented, by the proper authorities, the quantity of land called for by said land claims, and that he was to pay ail (lie expenses attendant thereon. It was agreed upon the part of Gilkerson that, in. consideration of the services of said Watkins and of the money to he by him expended in the premises, he, Gilkerson, would make or cause to be made to the appellant a good title to one-half of said lands when so located, surveyed, and patented.
    Said land claims were located,.surveyed, and patented at the instance of the appellant. Francis Gilkerson was dead. Robert Gilkerson was dead. Patents to two thousand five hundred and sixty acres of said laud issued in the name of the heirs of Francis Gilkerson. The patent forth© three hundred aud twenty acres was issued in the name of the said Robert Gilkerson, but after liis death. Robert was the brother and only heir of the said Francis, and Sarah Gilkerson was the widow of the said Robert, aud the minors were the children of the said Robert and Sarah.
    The suit was brought against the widow, Sarah, and the heirs of Robert Gil-kersou for specific performance.
    Sarah Gilkerson failed to file any answer in the case. A guardian ad litem was appointed by the court to represent the minors. lie filed his answer aud demurred generally to the petition upon the grounds “ that the contract set out “ in the petition was not in writing aud signed by the parties, and contrary to “the provisions of the statute of frauds.” The court sustained the demurrer and dismissed the complainant’s bill, from which decision the plaintiff appealed.
    
      S. P. Hollingsworth, for appellant.
    We say that the court erred in sustaining the demurrer, because the case at bar comes within the rule of part performance of a parol agreement for the sale of lands, as where the vendor under a parol agreement goes into possession and makes valuable improvements upon the premises. If the court should refuse to enforce the parol agreement then the vendee would become a trespasser and liable to damages. In such a case there would bo a manifest fraud upon the party in permitting the vendor to escape from a due performance of his own agreement. (See Story’s Equity, vol. 2, 13. 78, sec. 761 ¿ Foubl. Eq., B. 1, eh. 3, note e.)
    Tlve case before court, we think, comes within the rule of part performance, but is a much strouger case; it is not only part performance, but it is performed in whole, so far as can be done by the appellant. It is said that a court of equity will not decree a specific performance where a part of the purchase-money lias been paid, for the reason that the money may be repaid and the parties were just where they were before. (Story’s Eq., vol. 2, p. 78, see. 761.) Could the parties in this case be placed in statu quo? We think not; and if the court should refuse to enforce the contract, and say that the appellant should recover from the appellees the money expended aud interest and pay for his services, you would not he enforcing' a contract but would be making a contract for the parties. (Story’s Eq., 2 vol., p. 81, latter part of section 764; Id., p. 83, note 1.)
    The question raised by the demurrer in this case is answered by the court in the ease of James v. Fnlcrod, decided at Galveston, 1851. 'The only contract in relation to land, on the contrary, which the statute requires to be in writing is the contract for their sale. The terms of the statute should bo liberally construed for the suppression of the mischiefs which it was designed to prevent, and all agreements within its spirit and scope should be brought under its operation'. The contract under consideration was intended to órente an agency or trust concerning lands; under no rational construction can it be regarded as a contract for their sale.
    The case before the court, we think, is precisely similar to tlie case of James v. Fnlcrod, that is, so far as regards its legal effect. The contract between the appellant and Robert Gilkerson was precisely in the nature of a co-partnership.
    
      J. P. Armstrong, for appellees.
    The court below did not err in sustaining tlie demurrer. The only cause of action attempted to he shown by the petition is insufficient, being within the statute of frauds.
    
      The authority in 3 Haywood’s Reports, page 248, is not founded in good reason. The court that pronounced that decision were in doubt as to the propriety of it; and when this is the case, why should this court be asked to respect it and act upon it? There is, perhaps, no other adjudicated case in point.
   Lipscomb, J.

The court below sustained the demurrer to the plaintiff's petition, upon the ground that the verbal contract sued on was contrary to tile provision of the act to prevent fraud and fraudulent conveyances. (Hart. Dig., art. 1451.) We cannot, however, so regard it. It is not a “ contract for the “sale of lauds.” It is a contract by which the parties.agree to acquire land jointly. Neither of them owned the laud contemplated to be acquired. One was to furnish the certificates by which the laud could be obtained ; the other was to furnish the labor and expense of looking for laud and locating the certificates and to pay all the expense of the surveys, land office fees, &e. There is no legal objection to the validity of such a contract, although it is not reduced to writing signed by the party; nor to the ijroof of such a contract being made by the parol evidence.

The question was fully discussed and decided by the court in the case of James v. Fulcrod. (5 Tex. R., 512.) The judgment of the court below is reversed and cause remanded.

Reversed and remanded.

Note 64. — Evans v. Hardeman, 15 T., 481; Miller v. Roberts, 18 T., 16; Smock v. Landy, 28 T., 130; Cox v. Bray, 28 T., 247. A parol partition of lands is not within the statute of frauds. [Stuart v. Baker, 17 T., 417; Houston v. Sneed, 15 T., 307.)  