¶1(dissenting).
¶2I respectfully dissent.
¶3I agree the law is settled that to relieve a parol sale of land from the operation of the statute of frauds, three things are necessary: “1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). I disagree with the application of the law in this case by the majority.
¶4Except for disputed evidence concerning the amount of the consideration to be paid, the facts relating to an agreement by Potts and Ellzey each to convey an 11.1 percent interest to Harris are not materially disputed. Harris testified that the full purchase price for each 11.1 percent interest was $500 and that he paid this amount to both Potts and Ellzey. The canceled checks representing these payments are in evidence. Potts admitted the $500 payment had been made, but testified an additional $625 was due but had not been paid. The evidence concerning the conduct of Harris in making permanent improvements and taking possession is not disputed. Whether or not Harris’ actions are sufficient to satisfy the permanent improvement and possession re*128quirements of Hooks v. Bridgewater, supra,is the question to be decided.
¶5The tract of land involved here was located near Lake Livingston and had been subdivided and platted as “Lake Livingston Subdivision.” It contained 250 lots. The tract was vacant, raw land just prior to the time the oral contract was entered into. Streets and culverts were in the process of being put in when Harris entered into the transaction. Thereafter, streets were graded and culverts were placed at the subdivision entrance and low places for drainage. Potts, Lee Ellzey, J. S. Holleman, the other owner, and Harris, borrowed $3,000 for the purpose of grading the streets and placing culverts on the premises. It is undisputed that Harris signed the original note and subsequent renewals, and that he paid a total of $1257.51 which represented his proportionate share of the principal and interest. Harris cleared three of the lots by cutting the trees and brush. He set up a table on the cleared area for the purpose of writing contracts for the sale of lots. He whitewashed the remaining trees in the cleared area. He and J. S. Holleman procured and erected 14 or 15 permanent street signs on the property. Harris went on the property on numerous occasions principally on weekends to show the lots and offer them for sale, although no lots were sold. Mr. Potts testified he knew of Harris’ work on the property and of his efforts to sell the lots in the subdivision. Sale of the lots was discontinued when the Trinity River Authority filed suit against the City of Houston to enjoin further development in the Lake Livingston area.
¶6Possession by a vendee should be considered in light of the transaction alleged. Immediately upon the completion of the alleged sale, Harris went upon the land and performed the various acts set out. The payment of his share of the street grading and culverts; erecting the permanent street signs; the cleaning of the lots; whitewashing trees; being on the tract and offering the lots for sale to prospective purchasers, are acts which constitute possession of the land. These acts show that Harris exercised the right of control of the property with the power to use or enjoy the property. Powell v. Wiley, 141 Tex. 74, 77, 170 S.W.2d 470, 472 (1943). It was incumbent upon Harris to show he exercised the control of an owner of an undivided 22.2 percent interest in raw, subdivided land. I am of the opinion that he did so. Johnson v. Perkins, 140 S.W.2d 282 (Tex.Civ.App.— Beaumont 1940, writ dism’d jdgmt. cor.). See also Comment, Character of Possession Necessary to Satisfy the Rules of Hooks v. Bridgewater, 22 Baylor L.Rev. 361 (1970) and Comment, The Doctrine of Part Performance in Texas, 1 Tex.Tech.L.Rev. 325, 330 (1970). I am convinced the evidence presented here was sufficient to raise the issues of possession and valuable permanent improvements on the land in reliance upon the oral agreement between Harris and Potts and Ellzey. Jones v. Mawman, 145 Tex. 596, 200 S.W.2d 819 (1947). Therefore, I believe, the trial court erred in instructing a verdict for the defendants.
¶7I would reverse the judgment of the court of civil appeals and remand the cause for a new trial.
¶8McGEE and SAM D. JOHNSON, JJ., join in this dissent.