Burgauer v. Laird , 26 Ark. 256 ( 1870 )

HáRrisoN, J.

This was a suit, the proceedings in which were under the Code, by Emanuel Burgauer, as administrator of Moses Bur-gauer, deceased, against James J. Laird, for the recovery of a lot, or parcel of ground, in the town of Mt. Ida.

The defense set up in the answer was, that the plaintiff, by a parol agreement, had bargained and sold the lot to the defendant for five hundred dollars, in Montgomery county scrip, which had been paid to him, and he had put the defendant in possession of the premises. The plaintiff demurred to the answer, and assigned specially as causes of demurrer: 1. That it did not show that the lot had been legally sold. 2. That the sale, being by parol, was void by the statute of frauds.

The court overruled the demurrer, and, the plaintiff standing upon it, judgment was rendered against him, and he appealed.

It is clear, beyond all question, that the plaintiff had no authority to sell his intestate’s real estate without an order of court for that purpose, and except in the manner prescribed by the statute, but, although the sale to the defendant was invalid and void, having gone into the possession with the consent of the plaintiff, as a purchaser, he was not a trespasser or wrongfully in possession, and could not, therefore, in justice or reason, be subjected to a suit, unless he had refused to surrender it upon a demand or notice to quit. Fears v. Merrill, 9 Ark., 559; Jackson v. Bryant, 1 John., 322; Jackson et al. v. Wheeler, 6 ib., 272; Harley v. McCoy, 7 J. J. Marsh, 317; Right v. Beard, 13 East., 115. The demurrer was, therefore,, correctly overruled.

Judgment affirmed.