Smock v. Tandy

Citations

• 28 Tex. 130

Syllabus

<p>An agreement between the owner of a land certificate and another person that the latter should, at his own expense, locate the certificate and obtain the survey and patent, for which services and outlay he should be entitled to a certain portion of the land, is not a sale of lands within the meaning of the fourth clause of the 1st section of the statute of frauds, and need not be in writing. (Paschal’s Dig., Art. 3785, Note 904.)</p> <p>If the locator comply with his part of such a contract, and procure the patent to be issued in the -name of the owner of the certificate, the latter holds the title to the locator’s portion of the land in trust for the locator, and will be decreed to convey in a suit for specific performance.</p> <p>An agreement to divide or partition lands is not within the statute of frauds, and need not be in writing.</p> <p>S and C entered into a written contract, by which C agreed to locate, survey, and patent two hundred and sixty acres of A’s three hundred and twenty acre certificate, for which he should be entitled to one-third, or eighty-six and two-third acres of the land. Afterwards, S and C made a verbal agreement, by which C was to locate, survey, and patent the entire three hundred and twenty acres, and for so doing was to be entitled to eighty acres off of the east end of the tract, instead of the proportion provided for in the written contract. Having performed his part of the contract and procured a patent to S for the entire three hundred and twenty acres, C, the locator, sued S for title to the eighty acres off of the east end of the tract. S plead that the contract was not in Writing, as required by the fourth clause of the 1st section of the statute of frauds. Held, that the statute of frauds has no application. (Paschal’s Dig., Art. 3875, Note 904.)</p> <p>The judgment of the court below in favor of the plaintiff being defective for informality and want of certainty, but not void, this court, having the cause before it, refor