
    Davis v. Walker.
    
      [.Locative Interests. — Parol Contracts. — Statute of Frauds.']
    
    The bill states, that Pruitt, the half brother of the deceased, during the infancy of the defendants, offered warrants to Davis to be located, and agreed to give him one half ; that he, Davis, passed the warrant through * the commissioner’s office, and located and entered the land, and obtained grants, and caused them to be registered; the contract was not admitted in the answer; it was proved that Pruitt did make the contract and promised to give one half.
   Haywood, Judge.

This contract is a necessary one, made for preservation of a real interest, which otherwise might have been lost. And if it be as reasonable as it was necessary, it ought to be considered to be obligatory in the defendants. Not because possession was taken by the defendants after coming to age, for that might be without any, design to'assent to the contract; but because, being reasonable, as well as necessary, the court will enforce it; if not wholly reasonable it ought to be enforced so far as it is. The. evidence is that one third was the common allowance at the time this contract was made, therefore let it be allowed now. Precedent has established that such contract is not against our statute of frauds and perjuries; and I am for following the precedent, though by no means convinced of its correctness. Here, by parol evidence, a man’s real estate is affected, both by proof of a contract and by proof of the quantum of allowance proper to be made for the complainant’s services; all which might have been unalterably fixed by writing.

Judge KoaNE was of the same opinion; Judge Whyte gave no opinion.

The court directed an interlocutory decree to be drawn accordingly, and surveys to be made for ascertaining the part that should be allotted to the complainant at the next term.

See Smith v. Brooks, 3 Hay. 248, and note sub fin.  