Howard v. Easton

Headnote

A contract for livery of the pos- and the improve* Ziaht'uiwi ...... . . Ungí otherwise. it is within the statute of frauds. Possession is prima facie evidence of title; and is an interest 2a land) within the statute.

IN ERROR, from the court of common pleas of Eneida county.

it as ton ¡brought 3.11 «tction of" assumpsit íigctinst Hoto* ard, in the court below. The declaration stated,

that on, &c. at, &c. a certain conversation was had between the parties, relative to the sale of the possession, and improvements made by the plaintiff, of a tract of 150 acres of land, in lot No. 3. in the Oriskany patent, in which conversation it was then and there agreed, that in consideration that the plaintiff promised and agreed to sell and deliver up to the defendant, the possession and im-? provements made by the plaintiff on the said lot of land, &c. he the defendant then and there undertook and promised to pay the plaintiff sixty dollars, unconditionally, and the further sum of forty dollars, on condition that a certain ejectment then depending in the supreme court, against Easton, at the suit of Jackson, ex dem. Gephard and others, should not be decided against Easton. The plaintiff averred, that in pursuance of the said contract, he afterwards, to wit, on, &c. delivered up to the defendant his possession and improvements, on, &c.; and further averred, that the said suit, 8stc. was not decided against the plaintiff, but that a judgment of nonsuit was entered in August term, 1809, against the plaintiff in that Suit, yet the defendant, &c.

The defendant pleaded non assumpsit.

At the trial, in the court below, the plaintiff offered witnesses, to prove the contract stated in the declaration, it being admitted that there was no note or memorandum of the agreement in writing. The defendant objected to any parol evidence of the contract; but the court overruled the objection, and admitted the parol proof of thé contract; and the jury found a verdict for the plaintiff, A bill of exceptions was tendered to the opinion of the court below, on which a writ of error was brought to this court.

The cause was submitted to the court without argument.