We are unable to see how the appellant proposes to take this case without the influence of the decision of this court, made when it was here at a former term. — 93 Ala. 465. As then presented, it was simply a case of a sale by Steadham to Parrish of eighty acres of land at an agreed price, a part of which was paid in cash, the balance agreed to be paid at a specified time in the future, and actual possession of the land sold delivered to the purchaser, who actually enjoyed the possession and use thereof. The purchaser had- not bound himself, by any instrument in writing, to pay the future maturing debt. The statute of frauds was fully met by part payment of the purchase money and delivery of possession, and we held, in effect, that an action could be maintained by the vendor to recover the unpaid purchase money, although the contract on his part, binding him to execute a deed, still remained unexecuted. As the case is now presented, it is fortified by the further agreed fact that the plaintiff, vendor, before suit brought, executed and delivered, unconditionally, to defendant’s duly authorized agent, a deed conveying the land to defendant.
It makes no difference that by the term of the original contract the purchaser was not entitled to a deed until he paid'one-half the purchase money. It was competent for the parties to waive or' modify that provision, and this was done when the defendant’s attorney, at his request, procured the plaintiff to execute and deliver the deed to him.
Nor is the plaintiff to be affected by the fact that the defendant, when his attorney handed him the deed, immediately returned it to the attorney with the request that he hold it in escrow until he, defendant, should pay plaintiff the purchase money. The delivery of the deed by plaintiff to the attorney was absolute and unconditional. It was effectual as a conveyance to defendant of the legal title, from that moment; and nothing the defendant and the attorney could do between themselves, without the knowledge or assent of plaintiff, could affect him.
*620We have no doubt whatever of the plaintiff’s right to recover upon the common counts, on an account and account stated, as well as upon the special count, and that the rulings of the circuit court were free from error.
Affirmed.