Kizer v. Lock

ORMOND, J. The substance of the agreement, as recited in the declaration, is, that the plaintiff was entitled to a right of pre-emption in certain lands, and being about to enter the same at the land office, the defendant, who was indebted to him, in part of the sum necessary to enter the land, offered, and agreed to advance the residue of the money necessary to make the entry, provided he was permitted to enter the land in his own name, and that upon the repayment of the sum due, ho would reconvey, &c., which he refuses to do, although the money has been tendered to him. This, though informally stated in the declaration, is such a contract as may be enforced, if it be in writing, and signed by the party to be charged, as required by the statute of frauds, and the party aggrieved, might, at his option, have a specific performance in Chancery, or his action at law, for a breach of the contract. ' It is probable, that the decision of the court below was made upon the ground, that it did not appear that the contract was in writing. This was not necessary to be stated in the declaration. The rule as laid down in the books, is, that where a statute makes a writing necessary, where it was not so at the common law, it is not necessary to plead the thing to be in writing, though it must be proved to be so in evi 271 dence. [2 Salkeld Anon. 519; Stephen on P. 375.] A distinction is said to exist, between a plea and declaration, and that in the former it must be so averred. [Case v. Barber, Sir T. Ray. 450; see also, Brown v. Barnes, 6 Ala. Rep. 694.] From this view, it results, that the court erred in the decision made; its judgment is therefore reversed and the cause remanded.