Wells v. Foreman , 199 S.W. 1174 ( 1917 )

The jury made the special findings that the contract, as pleaded, was made by the appellee with the appellant, and, that each party received and was put in possession of all the property agreed upon between them. But the evidence established that the contract was an oral one, and there was no evidence that the plaintiff had made valuable improvements on the place after he went into possession of the premises. In order to have a judgment of specific performance as to the real estate, as pleaded, it was necessary for the court to find, which the evidence did not authorize, that the plaintiff had made valuable improvements on the place. Therefore the court did not err, it is concluded, in entering judgment as he did for the defendant. For it is an essential, as a firmly established rule, to take a parol sale of land out of the statute of frauds that the vendee on the faith of the transaction has made valuable improvements on the land. Bradley v. Owsley, 74 Tex. 71, 11 S.W. 1052; Robertson v. Simpkins, 61 Tex. 259; Cobb v. Johnson, 101 Tex. 440, 108 S.W. 811. And this court has held, and adheres to the ruling, that there must be not only payment of purchase money and change of possession, but valuable improvements as well must be made upon the property by the vendee. Page v. Vaughan, 173 S.W. 541. See West v. Webster, 39 Tex. Civ. App. 272, 87 S.W. 196. And if the contract, as shown in the record, was legally unenforceable to compel conveyance of the land, then a recovery of "the value of the premises," as pleaded, may not be awarded. But this does not mean that the consideration paid the appellee may not be recovered in a proper suit therefor.

The appellant's assignments are overruled, and the judgment is affirmed. But in affirming the present judgment it is directed that it be done without prejudice to any right of the appellant to have suit for the recovery of the purchase price paid to appellee.