Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 32

I382 ANN BERTA LODGE v. LEVERTON. [Tyler Term,
Opinion of the court.
performance of the contract for the protection of the purchaser
upon the mere fact that possession of the land has
been given him by the vendor? It is said, as we have
seen, by those who maintain that possession is such part
performance as will warrant the court in carrying out the
contract at the instance of either party, that this is necessary
to protect the purchaser against a charge of trespass,
or from a suit for the rents and profits received while in
possession of the land. But is there in fact any necessity
to enforce a contract in violation of the plain letter of the
law to afifrd the purchaser protection against such suits,
which, no doubt, in equity and good conscience he should
have? To enable the purchaser to defend himself against
such suits, it is insisted he must give in evidence the whole
contract under which he entered. Grant it. The statute
does not preclude the court from hearing proof of this
kind, if presented for any legitimate purpose. It merely
forbids charging the party on such contract after it is
proved. And surely, if the court can, to prevent a fraud,
decree the performance of the contract, notwithstanding
the statute, it can protect the defendant on the same
ground against the consequence of acts done under it, and
at the instance of the plaintiff Delivery of possession
might with more propriety be treated as a license to enter
and enjoy the rents and profits. And such license surely
would protect the purchaser against an action for trespass
or rents, when the contract of sale, through default of the
vendor, has not been carried out, or by reason of the statute
cannot be enforced. This seems to us much more
reasonable and more consonant with the rule of proceeding
in equity, than to enforce the performance of the contract
merely to prevent one of the parties against damage,
which otherwise he might sustain from the failure of the
other to comply with its stipulations. (Sugd. on Vend.,
111; Browne St. Fds., sec. 470; Allen's Estate, 1 Watts
& S., ;88.)