Cummings' Heirs v. Gill's Heirs

6 Ala. 562

Opinion

ORMOND, J.

Without considering the testimonyof the witnesses, which were objected to, it appears from the other testimony in the cause, that upon a verbal contract for the sale of land, the vendor, upon the receipt of a large part of the purchase money, put the vendee in possession of the land, who has ever since retained it, and made improvements, &c. This has always been considered, in this State as well as elsewhere, such a part performance of the contract, as would take the case out of the influence of the statute of frauds, arid authorize a court of chancery to decree a specihe execution of the contract.

The permission granted by the chancellor to the complainant, to amend the bill after publication of the testimony, cannot be reviewed in this court. The amendment which the chancellor permitted, relating to the price to be given for the land, was not, it is true, a matter of right at that stage of the cause. It was at most, however, in the nature of an amendment of a clerical error, which the chancellor might permit to be made at any time before a decree was rendered.

There was no error in the court decreeing the residue of the purchase money to the heirs of the vendor. If the defendant, Mc-Gehee, setup any claim to money due from the estate of Gill'to. the estate of Cummings, he should have asserted his title to it by a cross bill. Upon the bill filed by Gill, no decree can be made in favor of McGehee. A defendant cannot, by answer, pray any thing but to be dismissed the court; if he has any relief to pray, he must do so by a bill of his own. [Cullum v. Erwin, 4 Ala. 452.]

From this examination, it appears there is no error in the decree of the chancellor; and it is, therefore, affirmed.