¶1dissenting. The majority decision reverses a judgment based on a jury verdict which was in favor of the existence of a parol contract for the sale of land which should be specifically performed.
¶2I am of the opinion that the evidence before the jury in this case created an issue of fact with respect to the existence of the contract for the sale of land, and that the majority decision holding that the evidence demanded a judgment for the appellant is erroneous.
¶3Our Code § 37-802 provides that "the specific performance of a parol contract as to land shall be decreed, if the defendant admits the contract, ...”
¶4Our Statute of Frauds, Code § 20-401, provides that for a contract for the sale of land to be binding upon the seller, it must be in writing and signed by the seller or his agent.
¶5*216It is readily apparent that there is a conflict between Code §§ 37-802 and 20-401. Also, an exception to the Statute of Frauds is contained in our Code § 20-402 (3), such exception being as follows: "Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.”
¶6In this appeal the appellant relies solely on the Statute of Frauds to prevent specific performance of the alleged oral contract for the sale of land.
¶7In this case the alleged seller is deceased, and the opposing parties, one of them, the appellant, are his executor and a devisee under the will of the deceased.
¶8The attorney for the executor of the estate of the deceased testified that there was found among the personal papers of the deceased a "land book” which contained the following in writing: "Albert E. Poole (appellee) bought land from Mr. W. T. Campbell August 14, 1965, this book will show payments.” "Price $4,250.00”. The "land book” then lists the dates of 33 payments totaling $1,920.00. It is thus clear to me that if this "land book” was a document of the deceased, and if the deceased actually received these thirty-three payments on the purchase price, then the deceased "admitted” in writing the oral contract of sale even though the signature of the deceased did not appear in the "land book.” In addition to this "land book” evidence, there was the testimony of several witnesses to the effect that the deceased had stated to them that he had sold the land to the appellee, Albert Poole.
¶9I conclude that this evidence, both oral and in writing, was sufficient to create a fact issue for determination by a jury. From this evidence the jury could have concluded that the deceased had admitted the contract in writing, though the writing was not signed by the deceased, in compliance with Code § 37-802. From this evidence the jury could also have concluded that there was such part *217performance of the oral contract as would take it out of the Statute of Frauds pursuant to Code § 20-402 (3), and that for the personal representative of the deceased to refuse to comply with the contract would render such refusal a fraud upon the appellee.
¶10In short, I think the jury could have decided the issue either in favor of specific performance of the alleged contract or against specific performance of the alleged contract. I do not think this evidence demanded either conclusion.
¶11It is significant that the majority decision acknowledges the oral contract and the payments made thereon, because it directs restitution to the appellee for the thirty-three payments made and merely holds that the contract was unenforceable since the Statute of Frauds was asserted by the appellant.
¶12I think the majority decision does a disservice to Code § 37-802 because it prohibits the jury from determining whether the seller admitted the oral contract in writing.
¶13I would affirm the judgment based on the verdict of the jury in this case.
¶14I respectfully dissent.