Benjamin Fulton et al. v. Mary E. Robinson et al., 55 Tex. 401

Bonner, Associate Justice. If the receipt given by Israel Earles, deceased, to James Henderson, was such written agreement of the sale of the land therein mentioned as gave to the county court of Tarrant comity jurisdiction to make the order directing S. B. Russell, as the administrator of Earles, to make the deed to Henderson, under the statute then in force (Pasch. Dig., 1313), then the deed made by the administrator, Russell, to Henderson constituted such legal title as would defeat the claim of plaintiffs as the heirs of Earles.

This receipt is as follows: “Received of James Henderson three hundred dollars, in part payment of a certain tract of land, being my own headright, lying on Rush creek, in the cross timbers, this 23d March, 1859. “Israel Earles.” • The mere fact that it was in the form of a receipt would not of itself defeat it as a memorandum of contract for the sale of land, if sufficient in other respects. Dial v. Crain, 10 Tex., 553; authorities cited in Peters v. Phillips, 19 Tex., 74. Under the decision in the case of Peters v.

Phillips, the memorandum would be sufficient under the above statute, if it was such as required by the statute of frauds. Pasch. Dig., art. 3875. The general rule has often been announced in other courts as well as our own, that the memorandum under the statute of frauds should be so reasonably definite and certain within itself, or other writing referred to, as to parties, consideration and subject-matter, that specific performance can be enforced without a resort to parol testimony.

The cases in our own reports must be construed with reference to the question then under consideration, and the settled construction given to the statute by this court. Following the line of our decisions, it is said in Thomas v. Hammond, that, in this state, the rule is settled that it is not necessary that the consideration of a contract for the sale of lands should be expressed in writing. 47 Tex., 55; Ellett v. Brittain, 10 Tex., 208; Atkins v. Watson, 12 Tex., 199. In the elaborate opinion by Chief Justice Hemphill, in the above case of Ellett v.

Brittain, the authorities upon a kindred question to the one now before the court were reviewed, and the construction given to the statute in Packard v. Richardson, 17 Mass., 124, that the consideration need not be expressed in the writing, but might be proved by parol, was adopted; and it was said that the weight of American authority did not coincide with the rule to the contrary in Warn v. Walters, 5 East; and that laterly the force of this last named case had been much weakened in England.

The receipt being sufficiently certain in other respects, as to the parties and subject-matter, and as under the above authorities the consideration could be proven by parol, it constituted such memorandum as was sufficient, under the statute, to give jurisdiction to the county court. In deciding otherwise there was error in the judgment of the court below, for which it must be reversed and the cause remanded. Reversed and remanded. [Opinion delivered October 11, 1881.]