
    Samuel Korminsky et al., Resp'ts, v. Jacob Korminsky, App'lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed January 3, 1893.)
    
    1. Specific performance—Agreement to devise real estate.
    Plaintiffs paid the consideration for certain land which was conveyed to their father under a verbal arrangement by which he was to devise said land to them. He made a will containing such devise, but the same has been lost or destroyed. All the heirs except defendant have conveyed to plaintiffs except the defendant. Held, that the plaintiffs having performed their part of the agreement, it could not be avoided because not in writing, and that it can be enforced against the heirs-at-law of the promisor.
    3. Same—Code Crv. Pro., § 829—Evidence.
    Testimony of plaintiffs’ sisters, who have conveyed their interests to them, as to conversations with their father, is not inadmissible under § 829 of the Code.
    Appeal by the defendant from a judgment, entered upon a decision on a trial before the court, without a jury, compelling specific performance of an agreement to devise real estate, and ordering a conveyance from defendant, one of the heirs of the estate of Abraham Korminsky, deceased, to the plaintiffs.
    Abraham Korminsky, the father of the parties to this action, died in March, 1891, leaving him surviving, as his heirs-at law, the parties to this action and Rachel Lubin, Anna Barron and Mary Harris. At the time of his death, he held the title to the premises in question, under a deed from one Eliza Basch, dated April 1, 1873. The purchase from Eliza Basch was made by the plaintiffs, and the whole consideration for the conveyance was paid by them. The conveyance was made to the said Abraham Korminsky, at the request of the plaintiffs, for the sole purpose of securing to him a home during the remainder of his life. At the time of such conveyance, the said Abraham Korminsky promised, in consideration of such purchase by the plaintiffs and the conveyance to him, that he would devise said premises to the plaintiffs in and by his last will and testament; and, relying upon such promise, the plaintiffs purchased the premises and caused them to be conveyed to the said Abraham Korminsky. who took possession thereof, and lived thereon until the time of his death. In pursuance of said agreement the said Abraham Korminsky did make a last will and testament whereby he devised to the plaintiffs said premises, but said will has been lost or destroyed. Prior to the time of the commencement of this action, the defendant was informed by plaintiffs of such agreement, and was requested to execute a conveyance to the plaintiffs, which request the defendant refused. The other heirs-at-law of said Abraham Korminsky, deceased, without consideration, have given conveyances to. the plaintiffs, for the purpose of carrying out said agreement. The defendant removed to the state of California about twenty years ago, and has not since returned to the state of New York, nor, since said removal, has he contributed anything towards the support of his father, the said Abraham Korminsky.
    
      Job E. Hedges (WilliamErdman, of counsel), for app’lt;
    
      Hess, Townsend & McClelland (IP. J. Townsend, of counsel), for resp’ts.
   Gtldersleeve, J.

The equity powers of the court are invoked by the plaintiffs in this action to compel the specific performance off the agreement entered into with their father at the time they caused the premises in question to be conveyed to him. If the agreement was established on the trial by competent evidence, and it is one which a court of equity should enforce by compelling specific performance, it follows that the judgment herein was correct and should be sustained.

The fifth finding of fact made by the learned trial court is as follows: “ That at the time of such conveyance the said Abraham Korminsky promised and agreed to and with said plaintiffs, that, in consideration of such purchase by them and the conveyance to him, he would make a last will and testament, wherein and whereby he would devise to said plaintiffs said premises, and that he would leave said premises to said plaintiffs in and by a last will and testament; and that the plaintiffs, relying upon such promise and representations, purchased said premises, and procured the same to be conveyed to the said Abraham Korminsky.”

There is abundant evidence to sustain this finding. No evidence was introduced on the subject by defendant, and the testimony of plaintiffs’ witnesses makes out the agreement beyond all doubt.

The agreement, however, is attacked by the learned counsel for defendant upon the ground that it was not in writing, and, therefore, was absolutely void under the statute of frauds. This position is not tenable, for the reason that it clearly appears from the evidence that there was a full and complete performance of the verbal agreement on the part of the plaintiffs. They paid $2,000 in cash at the time the conveyance was made. The property was taken subject to two mortgages, amounting^ to $11,000, interest on which mortgages the plaintiffs paid until such time as they paid the mortgages in full and had them discharged of record. All this was done before their father died. A paroi agreement in respect to land cannot be avoided in equity because not in writing, where there has been a part performance of it. Smith v. Smith, 51 Hun, 164; 20 St. Rep., 597. Part performance by the party seeking to enforce the contract is sufficient. Freeman v. Freeman, 43 N. Y., 39. The statute of frauds does not apply to this case.

The agreement, can be enforced against the heirs at law of the promisor. An agreement, on good consideration, and without fraud or undue influence, to devise land, is valid, and will be enforced by compelling a conveyance from the heirs of the promisor or purchasers with notice. Parsell v. Stryker, 41 N. Y., 480; Lobdell v. Lobdell, 36 id., 327; Kenyon v. Youlen, 53 Hun, 592; 25 St. Rep., 299.

There was an adequate consideration for the agreement in question, and there is no imputation of fraud or undue influence in its procurement. The transaction was a commendable one, and in every respect meritorious, and an agreement of a nature that courts of equity should view with favor.

“ The rule which courts of equity have adopted in suits for the specific performance of contracts requires that the contract be established by competent and satisfactory proof, to be clear, definite and certain, for the reason, as Judge Story expresses it, that a court of equity 1 ought not to act upon conjecturesand if the proof should end in leaving the contract uncertain, so that the court cannot say what its precise import and limitations are, a decree for a specific performance will be withheld.” Lobdell v. Lobdell, supra. The agreement under consideration seems to meet every requirement of the rule adopted by courts of equity. The decreeing of a specific performance of the contract imposes no hardship or injustice upon the defendant, while the denial of such a decree would operate as a fraud upon the plaintiffs. They executed every part of their agreement, in confidence that the other party would do the same. To permit such other party, or his heirs, now to withdraw from the performance of the contract would aid a manifest fraud against the plaintiffs. It appears from the evidence that there was never any desire or intention manifested by the father of the parties to this action, with whom the agreement was made, to avoid its performance or defeat its operation. It is found, as a matter of fact, upon competent and sufficient evidence, by the learned trial court “ that Abraham Korminsky, in pursuance of said agreement, made a last will and testament, wherein and whereby he devised said premises to plaintiffs, but that said will has been lost or destroyed, and plaintiffs have been unable, after diligent search, to find the same.” All the other heirs, except the defendant, not parties to the agreement, have conveyed to plaintiffs all the interest in said premises which may have descended to them as heirs at law of Abraham Korminsky, without consideration, and for the purpose of carrying out the agreement in question.

The equity powers of the court are ample to enforce the agreement in the manner sought. By virtue of the agreement, upon the death of Abraham Korminsky the plaintiffs became the equitable owners of the premises in question, vested with an equitable title thereto. Gerard on Titles, 477. They had not only á right to secure a legal title by conveyance, but, as they were equitable owners under an equitable title, it is within the equitable powers of the court to decree that the equitable title be a legal title. Gerard on Titles, 477, et seq; Knolls v. Barnhart. 9 Hun, 443 ; Thorp v. Stewart, 44 id., 232; 8 St. Rep., 289.

In Wait’s Actions and Defenses (vol. 5, p. 831), it is stated as-follows : “A suit for specific performance, like that of foreclosure, is of a two-fold character, partly in personam, and partly in rem. The court may enforce the contract either by operating upon the person to compel a conveyance, or may pass the title of the land by decree.”

In Bennett v. Abrams, 41 Barb., 619, the court says: “ The plaintiff herein is entitled to a specific performance of the agreement That, however, may be impracticable. If so, then he may have proximate relief in some other form, which will secure to him the substantial advantages of his contract.”

The court below committed ho error in permitting the plaintiffs, at the beginning of the trial, to amend their complaint so as to demand equitable relief. The motion was addressed to the discretion of the court, and the amendment was warranted by the allegations of the complaint.

The exceptions taken to the rulings admitting the testimony of Mary Harris and Anna Barron, sisters of the plaintiffs, as to conversations with their father relating to the agreement and the will, are based upon § 829 of the Code.x That section has no application here, for the reason that the witnesses are in no way interested in the event of the action, nor was the claim of plaintiffs derived by assignment or conveyance from them. Code, § 829 ; Lobdell v. Lobdell, supra; Kenyon v. Youlen, supra.

We find no other errors assigned by the learned counsel for defendant that call for discussion.'

The judgment of the court below must be affirmed, with costs.

Freedman and Mo Ad am, JJ., concur.  