Ferguson v. Staver

The opinion of the court was delivered by Lowbxe, C. J. Even if this judgment were to stand, we do not see how the sheriff could execute an habere facias otherwise than by putting the plaintiff into possession in common with the defendants. But the parties have treated the case ás a claim to exclude one who is wrongfully in possession-as a tenant in common, and we shall take it so. It is admitted, that Staver and Kissel were owners together of the land, and that Kissel conveyed his share to Ferguson and Betts. But Staver claims under a previous purchase from Kissel. Does he show a title that is valid under the statute of frauds? We think not. There is a written settlement of partnership accounts between Staver and Kissel, and an agreement by Kissel to execute a deed; but a deed for what ? It does not even say for land ; and, if it means land, it does not profess to say for what land. The contract must be in writing. Its subject-matter is an essential part of it — and without it, there is no contract. If the subject-matter, the land, be described, we admit evidence in order to apply the descrip [414] ’tion to the land; but we cannot admit parol evidence, first, to describe the land sold, and then, to apply the description. If authorities are wanted for this, they can be found in Soles v. Hickman, 20 State Rep. 182. The defendants’ first, second, and fourth points ought to have been affirmed; and, perhaps, more might have been asked for. It was error to admit Kissel’s declarations made after he had parted with his title; but the other exceptions to evidence are not sustained. Judgment reversed, and a new trial awarded.