Ward v. Ward ( 1885 )

Opinion by

Judge Pryor:

In this case the appellees’ original action was in the nature of an ejectment to recover the'land in controversy. By an amended petition it is alleged that he had sold the land to the ancestor of appellant’s by parol and had received a part of the purchase money. The widow and heirs of the party in possession who' it is alleged by appellee have purchased from him deny that any such sale was made and say that their ancestor owned the land and invested the appellee with the legal title so that he might sell it for him, and that it was in fact their land. On the hearing of the case the proof conduced to establish and did in fact show a parol sale of the land to the ancestor of the appellants and a payment of part of the purchase money. The court below gave judgment for the recovery of the land itself on the idea that the parol sale was denied of the appellants and therefore no other judgment could have been rendered. This was erroneous. By the amendment the relief sought and all that appellee was entitled to from the proof was to enforce his lien. The appellants failing to establish any trust or to show that they were the real owners were then entitled to pay off the balance of the purchase money and obtain from the appellee a deed that he proffered and was willing to make. This was the relief the appellee asked and the proof showing the parol sale, a judgment to enforce the lien should have been rendered instead of a judgment for the land itself.

Stewart & Stewart, for appellants. T. T. Mann, for appellees.

Judgment reversed and cause remanded for proceedings consistent with this opinion.