Zabel v. Schroeder , 35 Tex. 308 ( 1872 )

Walker, J.

We do not think the errors assigned in this case can avail the appellant to reverse the judgment of the district court. It is difficult to see why Carl Koertz should ever have been made a party defendant in this case; but inasmuch as he disclaimed all interest in the suit, and all liability to the plaintiff, and no judgment is taken against him, it is not a matter on wMeh further comment need be made.

On the tMrd day of April, 1867, it appears from the pleadings and evidence, a contract was made between the parties for the sale of a certain lot of ground and the improvements thereon, by the appellee to the appellant, and the appellee, on the same day, made a deed for the property, which, it is apparent from the pleadings and evidence, was delivered to the appellant, who paid one hundred dollars of the purchase money down, and went into the possession of the property, and resided upon it for several months, speaking of it as his homestead, and that he had purchased it.

The deed specifies two deferred payments, each of the amount of five hundred dollars—the- one due in twelve, the other in eighteen months from the date of the transaction. The appellant places his right to reverse the judgment upon the hypothesis that this is a contract not to be executed within twelve months from its date, and therefore within the statute of frauds.

We think no court of equity ever has or can put such a construction on the statute of frauds as is here invoked.

We have held, in the case of Woods v. Sims & Brazee, administratrix, just decided, that the acceptance of a title bond by the grantees, which is signed only by the grantor, and the further acceptance and possession of the property intended to be conveyed, was a sufficient execution of the contract to take the case out of the statute of frauds, and hold the grantees for the purchase money; and this case is supported by the authority of Monroe & Brother v. Buchanan et al., 27 Texas, 241.

bio court of equity should ever so construe the law as to make it an instrument to protect fraud and rascality.

The statute of frauds was enacted “to prevent frauds and perjuries ;” and it sometimes requires nice discrimination in courts of equity, to prevent its doing the very tiling it was intended to restrain.

There is no tirror apparent upon this record, of which the appellant has any reason to complain.

There was error in the court protecting the attorney -of the appellant in his refusal to answer the questions propounded to him on the stand; the questions were proper, and he should have answered them.

The judgment of the district court is affirmed.

Affirmed.