
    Susan Ogsbury, Ex’rx, Resp’t, v. John D. F. Ogsbury, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Gift — Evidence of possession necessary to establish.
    Plaintiff, as executrix, asked for an injunction against defendant, an heir, to prevent him despoiling certain land of its timber, which land defendant claimed his father had agreed to give to him. Held, that a mere permission to enter upon premises to cut wood or make sugar, where the person merely builds an arch for boiling sap, is not such a possession and improvement as will justify a claim of paroi gift of real estate.
    S, Will — Construction of.
    
    That a devise of a father to a son of “ all that piece of land that he has a quit-claim deed of me and that he now occupies, also etc.,” meant one piece of land and not two, and was intended to recognize and confirm the son’s title.
    Appeal from judgment of supreme court, general term, fourth department, affirming judgment for plaintiff on verdict.
    
      Elon R. Brown, for app’lt; Watson M. Rogers, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 55.
    
   Finch, J.

It is claimed that the plaintiff, who sues in her representative capacity as the executrix of the will of Daniel Ogsbury, cannot maintain this action at all, because no trust was created by force of which the title to the real estate vested in her, and the action was to recover damages for a trespass upon lands which as executrix she neither owned nor possessed. The plaintiff claimed that there was an equitable conversion of the land into money by force of which she was entitled to recover the damages as belonging to her and constituting a part of the fund which she was directed to receive and disburse; and Clift v. Moses, 44 Hun, 312; 7 N. Y. State Rep., 691, was cited as authority. .Two clauses of the will relate to the power of sale. One is -an imperative command to sell within five years for the purpose of paying debts and legacies. I do not think its force is destroyed or its operation modified by the seventh and later tilause, which purports to give an authority to sell. It is not inconsistent with the prior command, and was intended to authorize the sale already directed in lots or parcels, or all together in the discretion of the executrix. But one difficulty with the theory of an equitable conversion at the death of the testator is that he gave the rents and profits of the land to the plaintiff in her individual right so long as it remained unsold and she in her own right was entitled to the possession of the land and the rents and profits until an actual sale, and so no earlier conversion was intended. It seems also to be the doctrine of Lent v. Howard, 89 N. Y., 169, that even where there is an imperative power of sale, the possession is in the heir, and the remedy of the executor to prevent spoliation in the nature of waste is in equity.

But I think this action may be regarded as one in equity and not at law. The complaint sets out the will and the power of sale therein contained. It describes the land in dispute, and avers that the executrix had commenced negotiations to sell it to one •Stevens who was an adjoining owner; that the defendant was despoiling the land of its timber and in spite of notice to discontinue his trespasses was persisting in the same, claiming that his father had agreed to give him the. lot; that he was dissatisfied with the will and was acting as he did to intimidate said Stevens and prevent a sale and embarrass the plaintiff in the performance of her duty as executrix; that the defendant is nervous and excitable and indiscreet and stubborn and threatens to continue his cutting and removal of timber. An injuction is asked to restrain his interference with the land by acts of waste,' and treble damages for the injury done, and such further relief as may be needed. While the complaint is somewhat inartificial and not very definite in its aim, I think we ought not to narrow its obvious scope into the allegation of a mere cause of action for trespass. It may justly be treated as an effort to quiet the title and settle the right of the executrix to sell the land as part of the testator’s estate, and to remove a very serious obstruction to the performance of the plaintiff’s duty. The action came on for trial at a circuit and special term and before a jury. It was, however, disposed of by the court. Treble damages were waived, and the jury were directed to find for the plaintiff a specific amount. No question appears to have been raised by either party over the mode of trial. Judgment was entered for the plaintiff in accordance with the order of the court. It seems to me on this state of facts that the action should be deemed to have been of an equitable character and so maintainable by the plaintiff in her representative capacity.

The defense was title in the defendant to the locus in quo, and this was rested upon three grounds : a paroi gift by the testator, a devise of the lot by his will and an adverse possession. The general term deemed the proof of a paroi gift by the testator unsatisfactory. Such proof should be very definite and certain to serve as a basis for that equitable relief or protection which dispenses with a writing and disregards the statute of frauds, and in this case it is quite doubtful and uncertain. But even assuming its sufficiency a further difficulty remains. There was no proof of any fact sufficient to relieve the gift in equity from the absence of a writing.

It is said'that the defendant went into possession and made improvements. I doubt if a mere entry into possession, unless possibly under some very unusual and exceptional circumstances, will warrant a decree of specific performance. But if it ever does, that possession must be very clear and definite, such as would characterize the action of an owner and be inconsistent with the hypothesis of a mere license; for in this class of cases equity dispenses with a writing only when definite and unequivocal facts exist which point with certainty to a prior paroi agreement of gift or sale and serve to indicate its existence, and so may be taken as a substitute for the usual written evidence. In this case no such possession was shown. It was entirely consistent in all its details with a mere license or permission from the father to cut wood or make sugar, and had no definite measure or boundaries, and pointed to no paroi gift or sale. The alleged improvements consisted, at the most, of an arch for boiling sap of so temporary a character as to be quite naturally erected by a tenant or licensee. For these reasons the court decided justly that no case for a specific performance of the paroi gift was established.

But the defendant also claimed that the lot in dispute was devised to him by the will of his father. The evidence establishes that in 1866 the defendant married and moved on to a forty acre piece of his father’s farm, on which he repaired an old house for his occupation, and erected a barn and other out-buildings, and for which the testator gave the defendant a quit-claim deed in 1880, which accurately bounds and describes the forty acres intended. The will of the testator contains the following provision: “I give and devise to my son, John D. L. Ogsbury, for and during his natural life, and to his heirs at law after his decease, the following described piece or parcel of land, viz.: all that piece of land that he has a quit-claim deed of me, and that he now occupies ; also a strip of land five chains wide,” etc. The appellant construes the phrase that he now occupies ” as covering a second parcel in addition to the one quit-claimed and so covering the land in dispute. That construction is inadmissible.

One piece or parcel of land, and not two, was the subject of the devise, and it was described by reference both to the quit-claim deed and the occupation under it. Then follows the word “ also,” and the devise of another single parcel. The meaning is entirely plain, and cannot be changed without violence to the terms of the devise. We are told that the devise of the forty acres is absurd, but the absurdity is not cured by the apjDellant’s construction. If we say that two pieces were given instead of one, the devise of the first remains, and is as absurd as ever. It is only by a construction which extinguishes the devise of the forty acres, and turning it into a mere recital by interpolating some expression like the words “in addition to” or “besides ” that the seeming absurdity can be effaced. The purpose probably was to recognize and confirm the son’s title. Such deeds of gift are apt to be questioned when the giver is dead, or occasion difficulty and misunderstanding, and to avoid that as far as possible the forty acres was devised in the will. But in any event it is impossible to warp the testator’s language into a devise of the land in question.

There was no adverse possession, and the conclusion of the court in that respect needs no further discussion.

The judgment should be affirmed, with costs.

All concur.  