
    Warren B. Agan, Respondent, v. John S. Barry, Individually and as Executor, etc, of William Stanton, Deceased, Appellant.
    
      Oral agreement to convey land — when enforced — the description of the land may be taken from a subsequent written agreement — dispute as to boundaries, how determined.
    
    In an action it appeared that the plaintiff had made an oral contract with John S. Barry as executor of a decedent for the sale of a farm and that, after making the oral agreement, the plaintiff took possession of the premises and had since continued in possession and had paid about two-thirds of the purchase price and had tendered payment of the balance thereof and a deed for execution by the executor, who refused to execute it on the ground that it did not properly describe the farm.
    
      Held, that, as the defendant did not plead the Statute of Frauds, the plaintiff was entitled to a deed of the farm;-
    That the fact that after the oral agreement was made the parties entered into a written agreement under seal, which was signed by John S. Barry individually did not defeat the plaintiff’s right to the deed from the executor.
    In such a case the oral agrément is not merged in the written agreement, and the latter agreement may be looked into for the purpose of obtaining a description of the premises.
    Where it appears that there was a dispute as to the exact boundary line between the farm agreed to be conveyed to the plaintiff and the adjoining farm, which was owned by the executor, and that the executor, in order to settle the dispute in his own favor, tendered to the plaintiff a deed describing the farm by metes and bounds, but not describing the farm as it was described in the agreement, the plaintiff may properly refuse to accept such deed.
    Appeal by the defendant, John S. Barry, individually and as executor, etc., of William Stanton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Rensselaer on the 2d day of April, 1901, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, a jury having been waived.
    
      .The action, was .brought to compel the delivery of a deed in accordance with the terms of a contract. The complaint alleges an oral contract made by plaintiff with defendant John S. Barry, as executor of the last will and testament of William Stanton, deceased, for the sale of the so-called Stanton farm. He alleges and proves the talcing possession of the farm immediately after the oral agreement and a continued possession since. The oral purchase was for the sum of $5,375, all of which plaintiff paid to defendant except the sum of $1,755 and interest from April 1, 1899; and on April 13> 1900, and before this action was commenced, plaintiff tendered such sum and interest with a deed for execution. "Defendant refused to receive the sum tendered or to execute the deed on the. sole ground that the deed did not properly describe the farm sold.
    
      Charles I. Webster, for the appellant.
    
      William H. Hollister Jr., for the respondent.
   Kellogg, J.:

The appellant’s principal argument is that, notwithstanding the oral agreement, there was subsequently made a written agreement under seal, and this was signed by John S. Barry individually and not as executor, hence the executor could not be bound; that the land was the farm of William Stanton at the time of his decease, and John S. Barry, as executor, by the power conferred by the last will of William Stanton, was the sole person who could enter into a contract of sale. Perhaps this argument would prevail if plaintiff was forced to stand on the written contract alone, but he alleges an oral contract with John S. Barry as executor, and the proof is abundant to sustain it. He alleges possession and payment of the purchase price, and these proven facts are sufficient to entitle plaintiff to a deed of-the. Stanton farm. Besides, the defendant does not plead the Statute of Frauds as a defense—-so the verbal contract cannot be assailed because it was not in writing. The oral contract may well stand, and the written contract also. The oral is not merged in the written because the parties are different. John S. Barry and John S. Barry, executor, being one and the same person, the written contract may be looked into for description of premises which was in the minds of the parties. The conclusion of the learned trial court, we think, was right. The defense is obviously technical..... . .

It appears that defendant, as executor, offered a deed in which the premises are described by metes , and bounds.. It also appears that there was a dispute as to the exact boundary line between the Stanton farm and the farm' of John S. Barry, adjoining. To settle this dispute in favor of Barry’s contention, the defendant made a deed b.y metes and bounds, and this is the one offered to plaintiff 'and refused by him. We think plaintiff was entitled to the Stanton farm,-as he purchased it, and the deed should describe it as it was described when the agreement was made. The dispute over the division line is a matter for future consideration.

The judgment should be affirmed, with costs.

Parker, P. J., concurred in result.

Judgment unanimously affirmed, with costs.  