Although it has been regretted by wise and learned judges that any exception should have been ingrafted by the courts upon the statute of frauds, yet, upon the principle that a law which was passed to prevent frauds should not be made the instrument to perpetrate them, the doctrine is now firmly established, that a sufficient part per*533fovmauce will entitle the vendee to demand a specific performance of a parol contract for the sale of land which otherwise, under the statute, would be invalid.
It is contended for appellees, the unknown heirs of William Aylott, deceased, that as appellant Hibbert was, previously to the contract of sale, in possession as a tenant, his act of remaining in possession thereafter was not such part performance as would take the case out of the statute. The authorities cited to sustain this position seem to be cases from those courts in which possession alone is held to be sufficient to enforce a parol contract, and are based upon the reason that as there was no visible change in the possession of the tenant, and no change in the condition of the parties by reason of possession, hence there was no such part performance as would make the parol contract binding.
The doctrine, that possession alone would be sufficient to take the sale without the statute, has been expressly denied by this court. (Ann Berta Lodge v. Leverton, 42 Tex., 26.)
If appellant’s case depended upon possession alone, we would not hesitate to affirm the judgment. It appears, however, from the petition, to which exceptions were sustained, that, at the instance and request of William Aylott, appellant Hibhert removed the old buildings first occupied by him under the lease and erected valuable improvements instead thereof, and which he had intended to have placed upon his own lot; that Aylott was present and encouraged the work; that the purchase-money had been tendered under the terms of the contract; that the subsequent possession was consistent with it; and that by the unexpected death of William Aylott before The expiration of the lease, actual performance by him had been rendered impossible. We are of opinion that these circumstances, under the authority of adjudicated cases, demand the equitable interposition of the court to decree a specific performance. (Lester v. Foxcroft, 1 Lead. Cas. in Eq., 537; Ponce v. McWhorter, 50 Tex., 571, and authorities cited.)
We do not think the proposition well taken, that this action *534cannot be maintained against the appellees as heirs of William Aylott. Upon his death his property vested in his heirs, and there being no administration, they were both proper and necessary parties. (Paschal’s Dig., art. 5488.)
[Opinion delivered February 13, 1880.]We are of opinion that there was error in the judgment of the court below sustaining the demurrer to the petition, for which the same should be reversed and the cause remanded.
Reversed and remanded.