¶1The court was in error in holding that the agreement in question, between appellant and appellee, was a contract for the sale of real estate, and therefore void under the statute of frauds, because not in writing. When the agreement was made by appellee for the recovery of the land in suit, it had been conveyed by her husband to other parties. The title was neither in the appellee or her husband, but in third parties, and the agreement was not a contract for the sale of the real estate, but was an agreement for its recovery for her by the appellant, in consideration of which he was to receive a certain portion of the land recovered.
¶2In James v. Fulcrod, 5 Tex., 516, the distinction was pointed out between our statute and the statute of frauds and perjuries (29 Charles II, ch. 3). In our statute the words “ or any interest in or concerning real estate,” which appear in the English statute, are omitted. As a consequence, many verbal agreements concerning real éstate, or creating an interest or trust in real estate, can be here enforced, which would come within the terms of that statute.
¶3These views are sustained by the following adjudicated cases: Evans v. Hardeman, 15 Tex., 480; Stuart v. Baker, 17 Tex., 417; Miller v. Roberts, 18 Tex., 16; Bullion v. Campbell, 27 Tex., 653; Smock v. Tandy, 28 Tex., 132; Gibbons v. Bell, 45 Tex., 418. The rule may now be considered as too firmly established in this state to be departed from.
¶4The judgment of the court below will be reversed and the cause remanded, with instructions to the district court to have commissioners appointed and the appellant’s land set apart to him, in accordance with the views expressed in this opinion.
¶5Eeversed and remanded.
¶6[Opinion delivered April 10, 1883.]