Smock v. Tandy , 28 Tex. 130 ( 1866 )

Smith, J.

—The plaintiff in error, R. B. Smock, and one G. H. Cunningham, on the 15th March, 1854, entered into a written agreement, by which Cunningham was to locate, survey, and have patented for him two hundred and sixty acres of land, and, when patented, Smock bound himself to make him a deed for one-third of it. Subsequently they entered into a verbal agreement, Cunningham acting by agent, to enlarge the survey to the full amount of three hundred and twenty acres, the whole of the certificate that Cunningham was locating, and he to receive his part for locating, surveying, and patenting it at his own expense, on the east end of the tract. The latter fully complied with the agreement, and patent was issued in the name of R. B. Smock, 1st December, 1856. On the 28th day of October, 1858, Cunningham transferred to the defendant in error, Tandy, the bond and written agreement made by Smock to him, and this suit was instituted by Tandy 31st May, 1860, upon the said bond and verbal contract, and prayed for specific performance and a decree for the eighty acres on the east end of the tract.

Verdict and judgment were rendered in his favor, and the defendants below have brought the cause here by writ of error. • ■

The court below instructed the jury that, if they believed the verbal agreement was entered into as stated, they should find for the plaintiff. This the plaintiffs in error assign as error, and insist, that the verbal contract is embraced by the provisions of the act to prevent frauds and fraudulent conveyances, (O. & W. Dig., Art., 936,) which provides that no action shall be brought upon any contract for the sale of lands unless the promise or agreement shall be in writing, and signed by the party to be charged therewith. (Paschal’s Dig., Art. 3875, clause 4, Note 904.)

This suit is not predicated upon a contract for the sale of land within the meaning of that act. It is a contract by which they agreed to acquire land together, one furnishing the certificate and the other his labor and expenses, in having the land located and patented; each furnishing his part of the means and consideration which secured the land from the government in the name of Smock, who holds Cunningham’s share, according to their agreement, in trust for' him, and is in equity as much compelled to convey it to him as if the land had been purchased by Smock from a third person, in his own name, with the funds and for the use of Cunningham.' Such a contract is not embraced within the act referred to. This doctrine has been - settled by this court in a number of cases. (Watkins v. Gilkerson, 10 Tex., 340; Miller v. Roberts, 18 Id., 16.)

The verbal agreement made by Smock with the agent of Cunningham is more in the nature of an agreement to partition the land than a purchase. By the written contract, he was entitled to one-third of two hundred and sixty acres, which would be eighty-six and two-third acres, the land being equal in value. The verbal agreement was to enlarge the survey, then being made, to the full amount of the certificate, three hundred and twenty acres, and Cunningham’s share in the survey to be reduced from the eighty-six and two-third acres and located on the east end of the tract; the latter to incur the additional expense of the survey, that is, his share in the partition was to be located at the east end of the tract. • If this be the proper construction to place on the verbal agreement, then it is not necessary that such an agreement should be in writing, because it is one to divide or partition lands, and not for the sale of them.

The plaintiffs in error have assigned as error informality and want of certainty in the judgment in the court below. The judgment is not void, but should have described the eighty acres more fully, giving the metes and bounds as set forth in the plaintiff’s petition. This informality we do not deem error, for which the cause should have been brought here for reversal. This court, having the case before it, will enter such a decree as should have been entered below; therefore it is ordered, that the judgment be reformed, and a full description of the eighty acres be set out in the judgment, and that it be affirmed at costs of the plaintiffs in error.

Judgment reformed and affirmed.