James Nichols v. Thomas J. Pilgrim, Adm'r, 20 Tex. 426

Wheeler, J. The decision was made to turn on the lapse of time between the making of the contract and the bringing of the suit.

If it were to be regarded simply as a suit for the specific performance of a contract, the decision would, perhaps, be correct. (9 Tex. 129, 239; 13 Id. 462.) But if the contract was completely executed by payment or performance of the consideration, and the vendee going into possession, inasmuch as it was not necessary at that time, (it being before the adoption of the Common Law and the statute of frauds,) that a sale of land should be evidenced by writing; if nothing remained but to partition the shares between the proprietors, the present is to be regarded as a suit for the partition of land, to which the plaintiff is entitled by virtue of the parol sale.

And if there has been no adverse possession, the lapse of time will not operate as a bar to the action. There is reason to apprehend that the facts, on which the rights of the parties depend, have not been brought as distinctly to view as they might be upon another trial; and although it does not very clearly appear what was the nature and extent of the plaintiff’s possession; yet the fair inference from the evidence is, that he did have possession under the contract.

The right of the plaintiff, it seems, must depend on the question whether the contract of sale was so completely executed as to vest in him the title. This question seems to have been lost sight of upon the trial; and the Court, regarding the suit as one solely for specific performance, made the decision turn upon the question of time. This we think was error; for which the judgment must be reversed and the cause remanded. Reversed and remanded.