466 CASES IN THE SUPREME COURT Underhill et al. admrs. vs. Allen. January TI NDFRIITT F LT Al 11-111 PS E. ACTE-N: A hill for the specific performance of contract for the sale of land: wheie the contrad is not allegel to be in wiiting: must show- a part performance —the allegation of the payment of the purchase money is not sufficient to take the ease out of the statute of fraud% ippcni from tho Circuit Conrt of (,:,f/1,,,jc moan in, Clione+-rq The HI on. Grill:441-7 l:V_LT, PT C I roil Cuiriroius & Garland, for the appellants. That the payment of the purchase money is not sufficient to take the ease out of
OF `ME STATE OF ARKANSAS. 467 Term 1857: Underhill et al. admrs. vs. Allen. the statute of fiauds. referred to Lister vs. Foxcroft, 1 Whit6 Tudor's Eq. Cases 507, and the authorities there cited. Mr, Chief Justice English delivered the opinion of the Court. This was a bill for specific performance, brought by WM. D. in the un 1 tteu d Clrell it Court, against the administrators of George W. Underhill The bill alleges that on the 21st of Deopmher, 1S53, complainant purchased of George W. Underhill, through one John Martin, the agent of said Underhill, the of the S. E, 1/4 of See 33, T. 0 N., R. 4 E., situate in the county of Crittenden-That at the time he purchas . ed said land, complainant paid to Martm, as such agent, the purchase money therefor, being $100 That Underhill bad entered the land with swamp land scrip, and it was imderstood and agreed by aud hetween complainant and said Underhill that the said Underhill should make to complainant a Ileed foi the land, or should transfer to him his certificate of entry for the same. That Underhill, afterwards, aml before making complainant a deed for the land, or transferring to him the eertificate of purdiase and entry thereof, de-parted this life intestate; and that letters of administratiwn upon his estate had been granted to his widow, Amin L. Underhill, and John L. Barnard, etc. That Underhill; at his death, left him sfirviving his said widow, and three children, George AV_, Frank and Virginia, his sole Itch s at law, who were infants and without guardians. The administratrix and administrator of Underhill are made defendants Prayer for specific performance of the contract, and_ that they be compelled by decree to convey the land to complainant, and for general relief, etc The defendants demurred to the bill generally for want of equity; the Court overruled the demurter, and the defendant, declining to answer over, a decree was rendered against them, in accordance with the prayer of the bill, that they convey the land to complainant by deed in due form, etc., or assign to him in legal form the certificate of entry, etc. Defendants appealed from the decree to this Court.
468 CASES IN TILE SUPREME COLTICE Underhill et al, admrs_ y s. Allen, January The bill being against the administiators of ITnderhill only, and not making his heirs parties, was perhaps filed under the provisions of see, 166-7, 8, ch. 4, Digest. p. 140, but it is nevertheless, in the nature of a bill for specific performance of a contract for the sale of land. The bill neither alleges nor exhibits any contract in writing, between Underhill, or his agent and complainant, for the sale and conveyance of the land : nor does it aver any such part performance as will take the ease out of the statute of frauds. It alleges no part performance of the contract whatever but the payment of the purchase money, hicli is not sufficient to take the ease out of the statute. Keatts vs. Rector, 1 Ark. 421. 2 Story's Eq. see. 760-1. Adam's EQ Marg . . p. 86, note 1, top p, 263. Hatcher et al. vs. Hatcher et al,, 1 McMullen's Eq. R. 817 Smith vs. Smith, 1 Rich. Eq. R. 131, Jackson vs. Cut-right, 5 Munf, 308. Johnson vs. Glancy tit al., 4 Blackf. 94, Had the bill alleged that the contract was in writing, or that complainant took possession of the land under and by virture ot his purchase, etc., the defendants would have been put umler plea or ansever to the bill, etc See authorities cited above, The Court erred in overruling the demurrer to the bill, and for this cause the decree must be reversed, and the cause re-'manded with instructions to the Court below to sustain the de-murrer, and permit the complainant to amend his bill if he desires to do so, othe i wise to dismiss it for want of equity. Absent, the Hon, Thomas B, Hanly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.