Hill v. Jones , 7 Ga. App. 394 ( 1910 )

Hill, C. J.

1. The Civil Code, §2693, par. 4, requires that “any contract ■ for sale of lands, or any interest in, or concerning them,” to make the obligation binding, shall be “in writing, signed by the party to be charged therewith, or some person by him lawfully authorized.”

2. A receipt alleged to have been given for- part of the purchase-price of land, which reads as follows: “Received of A. five dollars, to confirm trade for 161 acres of land purchased from B., known as Judge Hayes place,” signed by B., is not such a note or memorandum of the contract of sale as will take the ease without the statute of frauds, as to A. Smith v. Jones, 66 Ga. 338 (42 Am. R. 72) ; Turner v. Lorillard, 100 Ga. 645 (28 S. E. 383, 62 Am. St. R. 345) ; Corbin v. Durden, 126 Ga. 429 (55 S. E. 30).

3. It is only where partial payment is accompanied with possession by the vendee that a contract for the sale of land, not in writing, will amount to such part performance as will take the contract out of the statute. Civil Code, § 4037.

4. The contract for the sale of the land not being in writing or enforceable as falling within any of the exceptions to the statute of frauds, the trial court did not err in excluding all the evidence offered to show the unaccepted tender of a deed to the land and demand for the purchase-money, and in awarding a nonsuit. Graham v. Theis, 47 Ga. 479; Roughton v. Rawlings, 88 Ga. 819 (16 S. E. 89). Judgment affirmed.