
    Kenyon et al. v. Youlan.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1.. Ejectment—Defenses—Possession under Oral Contract.
    In an action of ejectment defendant claimed ownership under an oral contract with plaintiffs’ grantor to convey or devise to her and one P. the premises in question, in consideration of their moving thereon and taking care of her for the remainder of her life, and proved performance of the contract on their part, but a failure on the part of decedent, except the devise to P. of a life-interest in the premises to which defendant subsequently succeeded. Held, that defendant’s possession under the contract was a sufficient defense to the action.
    2. Witness—Competency—Decedents.
    Defendant was asked: “Was there a time when you went to live with P. 3 ” who was then deceased, and, plaintiffs’ objection thereto—“that it is a personal transaction ’’—being overruled, they excepted. Held that, as plaintiffs were not the executors, administrators, or survivors of P., and did not derive title nor any interest from, through, or under him, the exception was not well taken.
    
    Appeal from circuit court, Herkimer county.
    Ejectment by Haney M. Kenyon and Margaret E. Hoard, as devisees of Mary Piper, deceased, against Louvina Youlan, who claimed as equitable owner under an oral agreement with said Mary Piper, deóeased, and one George Y. Piper. Judgment was rendered at circuit in favor of defendant. Plaintiffs moved for a, new trial, which was denied, and they appeal from the judgment and.order denying motion.
    Argued before Hardin, P. J., and Martin, J.
    
      Joseph J. Dudleston, Jr., for appellants. Smith cfi Steele, for respondent,
    
      
       As to the competency of witnesses to testify concerning transactions with subsequently deceased persons, see Wilcox v. Corwin, 3 N. Y. Supp. 317; Brigham v. Gott, Id. 518; Mullins v. Chickering, (N. Y.) 18 N. E. Rep. 377; Welch v. Adams, (N. H.) 1 Atl. Rep. 1, and exhaustive note; Keithley v. Stafford, (Ill.) 18 N. E. Rep. 740, and note; Armfield v. Colvert, (N. C.) 9 S. E. Rep. 461.
    
   Martin, J.

This action was ejectment. The premises involved consist of a house and lot situated in the village of Frankfort, H. Y. They were owned by Mary Piper, deceased, in her life-time. The plaintiffs claim title as devisees under her will. The defendant claims as equitable owner. Her claim is founded upon an alleged agreement between the decedent and the defendant and George Y. Piper, whereby the decedent agreed to convey or devise the premises to them in consideration of their moving onto the premises and their taking care of her during the remainder of her life. This agreement was fully performed on their part. The defendant, in her answer, demanded judgment for the specific performance of their agreement.

On the trial the defendant gave evidence which tended to show that the decedent was quite earnest in her solicitations that the defendant and said George should move onto the premises and take care of her during the remainder of her life; that to induce them to do so she agreed, if they would move onto the premises and thus take care of her, that they should have the premises in question at her death; that she would convey or devise the premises to them; that in consideration of such agreement upon her part the defendant and said George agreed to move onto said premises and take care of her during the remainder of her life, and the defendant left the business in which she was then employed, and with George moved onto the premises, and in all things fully performed said agreement upon their part; that the decedent did not perform the agreement upon her part, but only devised to said George a life-estate in the premises. The defendant has succeeded to the interest of George undér said agreement, so far as such interest is involved in this action. The jury found the facts as claimed by the defendant.

If the contract proved was one which the court, under the evidence, might have required the plaintiffs to specifically perform, it follows that the judgment herein was correct, and should be sustained. If the defendant was entitled to a specific performance of the contract, she was entitled to the possession, and to assert her right of possession as a defense to this action. In Parsell v. Stryker, 41 N. Y. 480, it was held that an agreement on a good consideration to devise land is valid, and will be enforced by compelling a. conveyance from the heirs of the premises, or purchasers with notice. See, also, Lobdell v. Lobdell, 36 N. Y. 327. The fact that the contract in this-case was an oral one does not bar the defendant’s right to enforce a specific performance. The statute of frauds is not applicable in such a ease. Freeman v. Freeman, 43 N. Y. 34; Pom. Spec. Perf. § 30; Smith v. Smith, 4 N. Y. Supp. 669.

We think the agreement, as proved and found by the jury, constituted a defense to this action. The defendant was called as a witness in her own behalf, and was asked: “Was there a time when you went to live with George Piper?” To this the plaintiffs objected, upon the ground “that it is a personal transaction.” The objection was overruled, and the plaintiffs excepted. We do not think the exception well taken. The plaintiffs were not the executors, administrators, or survivors of George V. Piper, nor did they derive their title nor any interest from, through, or under him.

We have examined the other exceptions in the case, but have found none that require discussion, or that would justify an interference with the judgment. After a full and careful examination of the evidence and proceedings in this case, we are of the opinion that the ease was properly submitted to the jury, that the verdict is sustained by the evidence, and that the judgment and order appealed from should be affirmed. Judgment and order affirmed, with costs.

Hardin, P. J., concurs.  