¶1— This was ejectment for lot fifty-seven in Webb City. The defendant, Teel, answered that plaintiff made an agreement with Amanda Toms, whereby, in consideration of fifty dollars to be paid by her, and that she would take possession of the lot and build a house thereon, he would convey the same to her ; that she performed all these agreements on her part; and that defendant has acquired her interest in the lot. There was also a prayer for affirmative relief.
¶2The proof shows that the plaintiff agreed to give Mrs. Toms the lot in consideration that she would build a house upon it, which she did do, and which cost some one thousand and two hundred dollars, and that afterwards he agreed to sell to her lot fifty-eight for fifty dollars, which she paid to plaintiff. It was con*594ceded on the trial that Teel had acquired all the rights of Mrs. Toms to lot fifty-seven. The court found for plaintiff as to the south half of the lot, and gave defendant a decree of title to the north half. ■
¶3Why the pleadings were not amended to conform to the proof, we are not informed. If the defendant was entitled to any part of the lot, he was entitled to have a decree for the whole. Even upon the pleadings, as they stand, and the proofs as they appear to have been made from this bill of exceptions, the court should have found the amount of the balance due upon the lot, and, upon the payment of the same into court for the plaintiff, awarded the defendant a decree for the title to the whole lot.
¶4There is no question of the specific enforcement of a building contract in this case. The contract, in this respect, was executed. By part performance the agreement, though in parol, is taken out of the statute of frauds. The judgment is reversed, and cause remanded for new trial, with leave to parties to amend, if they, or either, see fit so to do.