Clayton and wife sold 300 acres of land to the appellee for the sum of $900, to be paid in instalments of $450, $225 and $225. Mrs. Clayton owned. the land in her separate right. The first, and part of the second note, were paid during the lifetime oí Mrs. Clayton,, who died in August, 1857. Neill McKinnon was duly appointed her administrator. In his inventory of the estate of Mrs. Clayton he returned the unpaid balance of the Frazier notes as assets. Subsequently he gave up the old notes and took a new note from Frazier, with Lane as security, dated December 27, 1857. The evidence shows payment of this note in cotton. Frazier took possession of the land at the time of purchase, September 2, 1854, and went ou making valuable and permanent improvements. Mrs. Clayton lived a neighbor and saw the improvements made, and acquiesced, received the money paid during her lifetime, and used it in making improvements upon her own homestead.
- On the fourteenth day of October, ,1859, Frazier filed his peti*100tion for specific performance, and prayed the court to decree him-a title to the 300 acres of land. McKinnon, the administrator, and the minor heirs of Mrs. Clayton, were duly made parties. Guardians ad litem for the minors were appointed. The defendants demurred to the petition, urging as ground of demurrer that Mrs. Clayton was a married woman at the execution of the title bond; that the land claimed was her separate property, and that the bond showed no privy examination of Mrs. Clayton. The demurrer was overruled, and the defendants appealed to this com t. The evidence clearly establishes the fact that Mrs. Clayton signed the bond with her own free will and accord; that she treated the sale as bona fide up to the time of her death; that so much of the purchase money as was paid in her lifetime she used in building a house upon her homestead, and that she spoke of making Frazier a deed not long before her death.
The rule of law is well settled in other States, that even a verbal contract for the sale of land, apcompanied with payment of the purchase money, possession and improvements, is good in' equity and will be specifically enforced.
It is claimed that the court below erred in admitting the surviving husband, Henry R. Clayton,- to testify as a witness on the-trial, on the ground that he was an interested witness. This objection cannot be sustained for the reason that the same facts sworn to by him were abundantly proven. by other witnesses, and the-character of his interest does not clearly appear.; but the main error insisted on, if it were error, is the overruling of the demurrer to the petition.
The cases of Womack’s Administrator v. Womack, 6 Texas, 397, and Dalton and wife v. Rust, 22 Texas, 133, are conclusive-of this point; indeed the equities of the case are so plain that it is difficult to imagine an. honest difference of opinion.
In Womack v. Womack the court say “ The statute which, prescribes the mode.of convoying the wife’s property.does not ex*101press1 y declare absolutely void any other mode of conveyance. It seems, from its terms, to have had hut one object in view, and that was to secure the freedom of will and action on the part of the married woman; and when the proof is clear as to the freedom of will on her part, and the transaction commends itself in poin t •of equity to the conscience of the court, particularly if the party contracting with his wife cannot be restored to his former position, the conveyance will be sustained, notwithstanding the want of a privy examination under the statute.”
2iow the evidence is perfectly clear that Frazier would not be restored to his former position; he purchased the land for a home, he he has labored upon it for most of his lifetime, improved it, enhanced its value by his labor and improvements; all the thousand sacred associations of home cluster ‘around it, and about it; he has acted in good faith, and there is not the slightest evidence to show that Mrs. Clayton would ever have acted iu bad faith, if she had lived. She was only too willing to sell some of her broad acres for . money to improve and adorn the ample endowment she had remaining after her sale. Money was more to her than land, and the brawny arm and sturdy industry of Frazier would make money, and make him too a home, and the parties could, as they did, live as neighbors and in peace.
The judgment of the district court is so far affirmed that it is the judgment and decree of this court, that within thirty days from the rising of the court, the appellant do make the appellee, his heirs or assigns, a deed in fee simple for the-three hundred acres of land described in the petition, and that in default of his so doing, this decree do'stand as and for a sufficient title for said land to the appellee. And that the appellant, McKinnon, pay the costs in the district court and in this court, out of the assets of the estate of Mrs. Clayton in his hands, if there be assets, and if there are no assets, that he then pay them out of his own money.
Reformed and rendered.