Benson v. Textor

I do not concur in the contention of the counsel for the defendant that under the agreement between the parties, the road from Wilkens avenue was to run along the entire line of the Hooper lot. All that the contract called for was that the entrance from Wilkens avenue was to be along the Hooper lot, the road from thence to be “located” by the plaintiffs themselves through to their property lying in the rear of the land in controversy. This location the plaintiffs proceeded to make, in accordance with the terms of the contract; and the road, and the line of the prop*459erty sold, were staked off by tlie surveyor, and shown and explained to the defendant. He expressed himself as pleased and satisfied with the location, and asserted ownership over the property by claiming from the tenant the growing crop, and forbidding him to remove a chicken house, built by the tenant, upon the ground that he, the defendant, now owned the property. These facts make out, in my opinion, a clear case of election by the defendant, and remove any objection that might otherwise exist by reason of the Statute of Frauds. I will sign a decree for the specific performance of the contract of sale.