
    Dugan’s Heirs v. Colville’s Heirs.
    Where there is a parol agreement for the pale of land which has not been patented, with a stipulation that a deed in fee-simple shall be made as soon as the patent shall issue, the statute of limitations does nob begin to run against a suit for specific performances until the issue of the patent.
    If there has not been such a change of circumstances produced or growing out of the parol contract for the pale of land that it would be difficult to place the vendee in the same position that ho was in before making the contract, there will not be a sufficient equity raised to justify a decree for a conveyance of the title.
    Where the vendee, in a parol contract, for the pale of land, by anti with the consent of the vendor, went into possession of the huid, built houses, and cultivated a large portion of the land as his own for years with out any objection on the part of I ds vendor, the court decreed a conveyance of the title upon the payment of the balance of the purchase-money due. (N ote dlj.J
    Error irom Grayson. This suit was brought in 184G by tiie heirs of Colville against tiie heirs of Dugan, to compel a specific performance of a contract for tiie conveyance of land. The petition and amended petition alleged that Silas C. Colville, (through whom tiie petitioners claimed title,) in hi* lifetime, in 1840, purchased from Daniel Dugan, ji\, for a valuable consideration, his headlight certificate for one-third of a league of land, granted him by the hoard of land commissioners for Fannin county, which certificate was then delivered over to the. said Silas C., together with tiie field notes of the survey of the said eertifl-cate, in two separate parcels or tracts of land; that the said Daniel Dugan then promised to make to the said Silas C. a good and sufficient deed in fee-simple for the said lauds as then surveyed so soon as patents should issue for the same ; that payment liad been made at tiie time for nearly the whole amount agreed on; that the said Silas C. entered into tlio possession of the said land by and witli tiie consent of tiie said Dugan, and made large improvements, building a dwelling-house and other valuable buildings, anil continued-to live on and improve the same by cultivating’ a large part of the same, amounting to one hundred acres or more, up to the time of his death, which possession had been continued by his representatives up to the present time; •that his legal representative had obtained the patents and had the possession of tlie same; that Dugan was dead before the issue of tlie patents, which patents issued on tlie first ¿lay of December, A. D. 1S45; that tlie heirs of Dugan had refused to make title to the said land. They prayed for a specific performance, .and averred a readiness to pay any amount that might be found due on the said land.
    Tlie defendants demurred to tlie petition and pleaded the statute of frauds, that tlie contract, if any, was not in writing, and pleaded the statute of limitations. By consent of parties a jury was waived and the cause submitted to John T. Mills, one of tlie district judges, who was then present as the presiding judge. Judge Martin had been of counsel in the case. The judge in his decree found all tlie substantial facts stated in the petition to be true, and found tlie balance, according to the contract, still due for the purchase to be fifty dollars. lie decreed this amount to be paid, and decreed title to be made and vested in tlie petitioners.
    There was no statement of facts.
    
      II. Morgan, for plaintiffs in error.
    
      J. T. Mills, for defendant in error.
   Dipscomb, J.

There were many points made in the discussion by the counsel for the plaintiff in error; but in looking into the record, we believe that as there is no statement of facts nor bill of exceptions, only two points can be considered by us, the demurrer and the statute of limitations. The record shows that the last cannot be sustained, as it had not interposed a bar at the time this suit was instituted, as it could not commence running until the issue of the patents. We believe tlie statute of frauds set up by the demurrer is equally unavailable.

The doctrine of how far a part-performance of the conditions or partial payment would furnish grounds for the specific, execution of a parol contract and lake it out of the operation of tlie statute of frauds was elaborately discussed and tlie authorities oil the subject critically reviewed in the opinion delivered by the chief justice in the case of Garner v. Stubblefield, decided by the court at Galveston, January Term, 1S51. (5 Tex. R., 552.) It was decided that partial payment or even full payment, unless under very particular circumstances, of itself, would not avoid the statute. That case, however, did not go the length of ruling that part-performance, coupled with possession and the exercise of proprietorship, with tlie consent or knowledge of the vendor, did not create an equity that would overrule the statute. In that case a partial payment of tlie purchase-money, unattended with possession or any other circumstance. was relied on as constituting a sufficient ground for claiming a specific performance. This was held by us not to be sufficient to defeat the operation of the statute.

I apprehend that the true principle is, that if there has not been such a change of circumstances produced or growing out of the parol contract that it wo'uld be difficult to place the vendee in the same position that lie was in before making the contract, there would not be a sufficient equity raised to justify a decree for a conveyance of the title. If, however, the vendor, by a parol contract, should permit the vendee to go into the possession and bestow much labor and expense in improving the land, in the confidence that the vendor would make tlie title in conformity with his parol promise, such circumstances would raise an equity in favor of the vendee against his vendor, aside from and uncontrolled by the statute of frauds. It would be like the holder of the better title standing by and encouraging and advising the improving of his property by one who believed his title good, and not asserting his title and warning the innocent possessor of his superior right. In such case the soundest principles of equity jurisprudence would forbid the enforcing tlio superior title. In the case under consideration the vendee, by and with the consent of the vendor, went into the possession of the land, built houses, and ■cultivated a large portion of the land as his own for years, without any objection on the part of ids vendor, in the full confidence that as soon as the patents could be obtained from the General Land Office a conveyance would be made to him. We believe that an equity is here raised, based upon these circumstances, aside from and independent of the statute, that calls for an affirmance of the decree ordering a conveyance of the land.

^ote2G. — Otfcenhouse v. Burleson, 11 T., 87; Reynolds v. Johnston, 13 T., 214; Noatherlyv. Ripley, 21T., 434; Taylor v. Rowland, 2G T., 293; Cox v. Bray, 28 T., 247; Howe v. Rogers, 32 T., 21S; Wood v. Jones, 35 T., 64; Curlin v. Hendricks, 35 T., 225; Johnson v. Bowden, 37 T,621; Robinson v. Davenport, 40 T., 333. Jf the vendor is unable to make tille the vendee is entitled to judgment for the value of his improvements, subject to a deduction for the rents and profits. (Reynolds v. Johnston, 13 T., 214; Taylor r. Rowland, 26 T., 293.) The terms of the contract must be clear and definite as to the locality and description of the land. (Taylor v. Ashley, 15 T., 50.) In Boze v. Davis, 14 T., 331, it was held that a voluntary agreement to convey land will not be specifically enforced, although the donee may have been actually put in possession by the donor and expended much labor and money in the erection of buildings and improving the land; but the donee can recover the value of the improvements. The specific performance of a bond for title to land which does not recite a valuable consideration, and where none is proven, will not be enforced. (Tomlinson v. York, 20 T., 694.) In Hendricks v. Snidiker, 30 T., 298, and in Curlin v. Hendricks, 35 T., 225, the case of Boze v. Davis is reviewed and the correctness of the decision questioned. In Murphy v. Stell, 43 T., 123, it is held that to sustain a parol gift of lands, followed by possession and large expenditure in improvements thereon by the grantees, it is necessary that the terms and conditions of such contract be clear and free from ambiguity, and that possession was taken and improvements made on the strength of it. Permission, occupation by the father and expectation of a gift by the son will not be sufficient to bring the case within the rule.

Judgment affirmed.  