
    Waggoner v. Speck and the Heirs of Cooper.
    Real estate, occupied by permission of the owner on a parol agreement that the occupation should continue during the life of the occupant, can not be subjected to occupant’s debts in equity.
    Heard before Judges Hitchcock, and Burnet, in Montgomery county, 1827.
    The bill charges, that Waggoner has received a judgment against Speck, in the common pleas of Montgomery county. That he holds another judgment against Speck by assignment. That no property can be found, on which the ^executions on those judgments can be levied. That Speck purchased a lot from Cooper in his life, which he improved, and now lives on ; and that he refuses to take a deed for the said lot, with a view of keeping it out of the reach of his creditors. The bill prays that the lot may be sold, and that the heirs of Cooper may be required to make a title to the purchaser. The defendant, Speck, denies that he purchased or paid for the lot, or that he has any title to it, legal or equitable. He admits that he is in possession of the lot; alleges that he took possession by the permission of Cooper, who promised that he would permit him to occupy it during his life, and that Cooper had said, at different times, that he intended to give the lot to the daughter of the defendant.
    The heirs of Cooper have answered, that being infants of tender years, they have but little knowledge of the matters in the bill. That they have understood and believe that the defendant, Speck, never purchased the lot. That he occupied it by the indulgence of their father, but that he has no right to it, legal or equitable. ■ »,
    The case was argued by Stoddart for the complainant, and Bacon, Smith, and Lowe, for the defendants.
   By the Court :

It appears from the testimony that the defendant, Speck, has occupied the lot in question several years, and that he has improved it; but there is no evidence of any contract between him and Cooper for a purchase, nor does it appear that any payment has been made, either on account of a purchase, or of a lease. Several of the witnesses state they have heard Cooper say, he would let Speck live on the lot during his life, and that he intended to give it to his daughter Nancy, and it is evident that Speck relied on such a promise when he took possession and made his improvements; but these facts and circumstances make out a different case from that which is stated. The discrepancy is so great as to render it impossible to give relief in any form, under the present bill.

The objection relied on in the argument that the contract, if auy existed, was not in writing, would not, of itself, necessarily bar the complainant from the relief which he seeks. It has become the settled construction of our statute for the prevention of frauds and perjuries, that the delivery *of possession is such a species of part performance as may take a case out of the statute, when the effect of it is not controlled by other facts connected with the case.

Bill dismissed.  