
    COURT OF APPEALS.
    Frank Lobdell and others, respondents agt. Ammon Lobdelll and others, appellants.
    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.
    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 denied.
    If evidence is given in the court below tending to the establishment of such a contract, the sufficiency of the proof to satisfy the mind of the court as to the existence of the contract, with the requisite degree of clearness and certainty, is not a matter for this court to consider.
    In this case, the variance between the contract set up in the complaint and that found by the referee is not such as to require a dismissal of the complaint.
    The difference between the terms of the contract, as alleged, and those proved, was a mere variance, and was properly disregarded.
    The rule of practice established by the Code in regard to variances, whatever was .the former rule, must now prevail in cases of this kind, as well as others.
    The promise to convey, as found by the referee, was not a mere voluntary one, but was made upon a valuable consideration, emanating from a loss or disadvantage to the promisee, Pliny said to Seymour, “ If you will bestow certain work and labor upon this piece of land, I will convey it to you.”
    It cannot be doubted that, after Seymour has done the work, Pliny refuses to convey, an action at law would lie for the breach of the contract. The consideration is sufficient to support the promise. (On the above points, this court affirm the decision of the general term thereon, 321Tow. 1.)
    Two of the defendants in this case were sworn as witnesses on them own behalf, and were sought to be examined in respect to the arrangement made and conversation had between Pliny Lobdell, their father, deceased, under whom they claim as devisees, and Seymour Lobdell, their brother, deceased, under ' whom the plaintiffs claim as hems at law, in the presence of these two defendants. Such examination being objected to as incompetent under the 399th section of the Code, as it then stood, the objection was sustained and the examination excluded.
    
      Meld, by this court, that this was error. The transaction or communication respecting which they sought to testify was not between themselves and the deceased person, or, in the language of the Code, “had personally by said party with a deceased person,” but between the deceased person and a third person.
    When the legislature explicitly limit the exclusion of a party to cases in which he should offer to testify in respect to a transaction or communication had personally by him with the deceased person, it is impossible to construe that exclusion as meaning to cover transactions or commipnications had with a third person, whoever he may be and however connected with the party offering to testify, with the deceased person.
    
      Submitted on printed arguments, March Term, 1867.
    
      Decided, June Term, 1867.
    Appeal from a judgment of the general term of the supreme court, in the eighth district, affirming a judgment entered on the report of a referee at special term. (Reported 32 How. Fr. R 1.)
    
    H. Boxes, attorney for defendants, appellants.
    
    I, There are two reasons for calling the attention of this court to the evidence.
    
      First. It is submitted that there is no evidence to support the finding of the referee as to the terms of the contract under which Seymour Lobdell took possession of the land in question; and -
    
      Second. I wish for the decision of this court as to whether an action for the specific performance of a parol contract to convey land can be maintained when the evidence leaves it a question of doubt as to whether the contract sought to be enforced was or was not made.
    Of the terms of the agreement, three witnesses have spoken.
    
      
      First, Anna Lobdell (widow of Seymour), who swears to an agreement by which Pliney was to convey the land to Seymour for what he, Pliney, owed Seymour.
    
      Second. Nancy Lobdell (widow of Pliney), who proves an agreement by which Seymour was to have the use of the land.while he worked it to the satisfaction of his, father. The cross-examination of this witness, in which she says: “ Them father told the boys, Ammon and Seymour, that if they would go down onto this land and cultivate it, the land should some time be theirs.”
    , Third. Matilda Houghton (daughter of Pliney), who swears that her father told Seymour he could go onto the lot in question; cut the timber just as fast as he gave him permission, and no faster; and as long as he lived up to his rules, and did as he told him, he might stay.
    Where, let me ask, is it found by this evidence that Pliney Lobdell agreed, as found by the referee, ,l that if Seymour would take possession of and clear up, reduce to cultivation and make improvements upon * * * said lot, the same should become and be the property of the said Seymour, and that he, the said Pliney, would convey the same to him by a sufficient deed of conveyance ?”
    The learned judge who wrote the opinion of the supreme court tells us that it must have been mainly upon the evidence of the mother of the plaintiffs that the referee found the agreement.
    I deny that he found it upon any evidence that was ever given in this action. No such agreement is claimed in the complaint to have been made. No effort was made by the plaintiffs to prove it on the trial, and the defendants were never called upon to disprove either the contract as found or the non-performance of its conditions by Seymour.
    It was never dreamed of by any of the parties to this action until the referee filed his report, and all its vital provisions are the offspring of his brain alone.
    No aid can be drawn to its support from the admission of Pliney Lobdell, and there is not a word that he ever uttered, or an act that he ever did, that tends to prove an agreement with any such conditions in it as that found by the referee. The evidence that Seymour did not so understand the arrangement between him and his father is overwhelming.
    By the plaintiffs’ witness, it is proved that he demanded the deed immediately upon making the agreement, and without waiting to clear up. the land.
    By the defendants’ witnesses, that he repeatedly affirmed that the land was not his; that he recognized Pliney’s title by asking permission to cut the timber, peal the bark, &c.; that he refused to build the line fence, because the land was not his; or clear off the fand.
    That Pliney did not so understand the agreement is as positively proved.
    When applied to for a deed,-at the time Seymour took possession, he did not put his refusal upon the ground that the land was not cleared up, but said that when he died he intended to give the whole lot to Seymour.
    He always refused to give a deed, not because the conditions of Seymour’s contract had not been performed, but because he denied that he had made any agreement to convey; and refused to sell it to Seymour, even for its full value; and disputed that Seymour had any legal claim upon the land; and actually occupied a part of said lot, claiming it as his own.
    Upon this evidence, I submit that it is clearly the duty of this court to reverse the judgment appealed from, upon the ground that there is no evidence to sustain the finding of the referee.
    II. A court of equity has not the power to decree the specific performance of a parol contract for the conveyance of land, where the evidence presents a fair question of doubt as to whether the contract sought to be enforced was or was not made. (German agt. Machin, 6 Paige, 288; Phillips agt. Thompson, 1 John. Ch. 131; Story's Eq. Jur. §§ 755, 756, 764, 766, 767, 769; 1 John. Ch. 145,150, 283, 286; Willard's Eq. Pr. § 282.)
    III. The evidence given, and that offered by the defendants, and rejected by the referee, shows that Seymour sustained no pecuniary loss by reason of the breach of Pliney’s contract; the timber taken by him being worth as much as the improvements made.
    And there is no evidence that Pliney realized any advanvantage whatever from.the agreement.
    Such a contract is without consideration, and cannot be enforced in a court of equity. (Story’s Eq. Jur. § 987. See also § 792.)
    It is not enough that the balance of Pliney’s land “may have been enhanced in value by reason of the clearing up of this lot. There is no proof that it was. Indeed, the evidence shows that it was not.
    TV. The contract alleged in the complaint and the one ■ found by the referee are entirely different and distinct from each other. The first was a sale of fourteen acres described by metes or bounds, for a valuable consideration paid by Seymour; the second,'an agreement to convey fifteen acres if Seymour would perform certain conditions precedent.
    Prior to the Code, the rule was well settled that a party, to maintain his action for the specific performance of a contract, must prove the identical agreement laid in his bill. (Phillips agt. Thompson, 1 John. Ch. 131; 5 Wend. 646; Wilde agt. Fox, 1 Rand. 165, 170; Byrne agt. Romaine, 2 Edw. 445.)
    It is held by-the supreme court, in this case, that the rule is changed by the Code.
    The power to disregard variances and amend pleading always existed in courts of equity.
    The rule had a deeper and broader foundation than any upon which mere questions of pleadings were ever based. It was adopted in this class of cases because the plaintiff invoked the extraordinary powers of the court to override an express provision of the statute, and it coinpelled this precise correspondence between the pleadings and the proofs as-a partial -safeguard against the frauds that the statute was designed to prevent.
    The supreme court suggests that no question of evidence was raised on tlie trial. ¡None could be raised, for no claim was made, that any other agreement than that alleged in the complaint had been proved, and against that agreement the defendants' successfully defended.
    Y. To entitle the plaintiffs to recover, they must prove a performance by Seymour of the conditions of the contract found. That is, that he took possession of, cleared up, &c., fifteen acres of land.
    Ho pretence can be made that he took possession of that amount.- The complaint alleges that he took possession of fourteen acres, describing it by metes and bounds.
    But one witness measured the lot, and he swears that he actually had possession of about twelve and one-half acres.
    It has been said that the evidence of the amount of land actually occupied by Seymour, is indefinite and uncertain. Suppose it is. Whose business is it to make it certain ? Ours to prevent- the plaintiffs from taking land that Pliney Lobdell always owned, and claimed and possessed, or theirs to enable them to take that which Seymour cleared up, reduced to cultivation, &c. ?
    But the evidence is not uncertain. The complaint describes the land occupied by Seymour, and the front line of that lot as stated in the complaint is just thirteen and a half rods long. The only witness that speaks of a measurement, says definitely, that the land occupied by Seymour is thirteen and a half rods wide on the road. .
    It'is true this witness swears that the lot is narrower at the back end, and gives us .measurements perhaps less precise than they might have been, but sufficiently definite to show that Seymour actually occupied but about twelve and a half acres. The plaintiffs do not attempt to dispute that measurement, and no one claims that Seymour even had possession of a strip of land more than thirteen and a half rods wide at any point.
    Aiid yet the referee finds that the plaintiffs are entitled to, and the judgment directs the defendants to convey a strip not thirteen and a half, but fourteen and almost a fourth rods in width.
    By what authority can the court compel these defendants to convey land that Seymour Lobdell never occupied or claimed, he certainly did not perform the conditions upon which he was to have that portion of the land outside the-bounds of the lot occupied by him.
    It may seem harsh to characterize as a tyranical exercise of power, that portion of the decree which enters the undisputed possessions of these defendants, and wrenches from them as with a strong arm, lands to which the plaintiffs establish no shadow of right, but it is a wrong, an unjustifiable wrong, that loses none of its hideous character because it emanates from a tribunal that was established for the protection of human rights, instead of the perpetration of deliberate wrongs.
    The attention of the supreme court, on the appeal in this action, was distinctly called to this point, but it is entirely ignored in the opinion delivered. It seems to me that such a palpable violation of the rights of these defendants, is of sufficient importance to be entitled to a passing thought at least. .
    "VT. The referee erred in excluding the evidence of Ammon, and George E. Lobdell, offered at folios 147, 152 and 153.
    The identical question involved in the offer at folio 152, was decided in Simmons agt. Sisson (26 N. Y. R. 276), and I do not see why that decision should be disregarded, unless it is deemed important to involve the questions here in as much confusion as possible, that the imagination may meet with less obstacles in its search for some contract or understanding, by which the defendants can be compelled to relinquish their claims to this land. (See also Traphagen agt. Traphagen, 40 Barb. 537.)
    In bringing this case to the notice of the coiut of last resort, I am frank to conceive that in my judgment, an authoritative settlement of the questions involved constitutes its chief importance, and I have consented to submit it upon written argument, that we may avoid, as far as possible, an expense that none of the parties are able to bear.
    The decision of the supreme court, if it can be supported as law, is a step far in advance of any reported case. It effectually wipes out the statute, and exposes the community to all the evils that were sought to be avoided by its enactment. It places a contract which the law declares void, upon precisely the same footing in court with the one which is conceded to be good, and subjects the rights of the party that has rested on a well known rule of law, as a shield against frauds and perjuries, to all the doubt and uncertainty that clusters around the most, difficult questions of fact.
    Nay, it goes further than this, and upholds the finding of a referee, that virtually wrings from the court that sustains it, the declaration that in the judgment of that court, the contract enforced was never made.
    With the statute, it sweeps away the remaining safe-guard that courts had thrown around parties to actions of this character, in the rule that the defendant shall always be permitted to know against what contract he is called upon to defend.
    It disregards the rule that an agreement of this kind to be enforced must always be supported by a valuable consideration to be proved by the plaintiff.
    It limits the aid of the extraordinary powers of the court of equity in a case where a court of law is amply competent to furnish a remedy in damages for a breach of the contract found.
    It forgets even the fundamental rule, that the plaintiff must have taken possession under the contract to be enforced, of all the premises of which a conveyance is sought, and compels the transfer of lands, of which the plaintiffs nor their ancestors, were never in possession, and for which not a farthing’s consideration was ever paid.
    It takes from the defendants even the right of giving the evidence which the highest court in the state has declared legal and competent, and compels them to submit their case on that most uncertain of human testimony, the admissions of parties.
    It permits the plaintiffs to recover upon an entirely different and distinct contract from that set out in them complaint, without subjecting them to the necessity of an amendment of their pleadings, or giving the defendants the least opportunity to prepare against the claim upon which they are beaten, and it imposes upon the defendants the whole expense of a long and tedious litigation over an issue that is decided in their 'favor.
    If all these innovations upon ancient and established rules are to be regarded as law, the decree should come from the court of last resort, that men may know the jeopardy of their rights, and guard them accordingly.
    George W. Cothran, attorney for plaintiffs, respondents.
    
    I. A parol agreement for the conveyance of land, although void at law, will be enforced in equity, and a proper conveyance be decreed, where the agreement has been performed by the party seeking relief. (Malins agt. Brown, 4 N. Y. R. 403; Williston agt. Williston, 41 Barb. S. C. R. 635, 643; McCray agt. McCray, 30 Barb. S. C. R. 633; Surcombe agt. Pinninger, 17 Eng. L. and Eq. R. 212; Traphagan agt. Traphagan, 40 Barb. S. C. R. 537; Wetmore agt. White, 2 Caines' Cas. 109; 2 Story's Eq. Jur. § 761; Parkhurst agt. Van Cortland, 14 J. R. 15; Morphet agt. Jones, 1 Swanst Ch. R. 181; Dygert agt. Remersneider, 32 N. Y. R. 629, 643; Lowry agt. Tew, 3 Barb. Ch. R. 407; Jeremy on Equity, 436, 456; Newton agt. Swasey, 8 N. H. 9; Eaton agt. Whitaker, 18 Conn. 222; Caldwell agt. Carrington, 9 Pet. 86; Dugan agt. Gittings, 3 Gill. 138; Hall agt. Hall, 1 Gill. 383; Moreland agt. Lemasters, 4 Blackf. 383, 385; Id. 94, 98; Byrd agt. Odem, 9 Ala. 756, 764; Finucane agt. Kearney, 1 Freeman, 65, 69; Simmons agt. Hill, 4 Harris & McH. 252; Thornton agt. Heirs of Henry, 2 Scam. 219; Shirly agt. Spencer, 4 Gilm. 583, 560; Allen's Estate, 1 Watts & Serg. 383; 1 Lead. Cases in Eq. by Hare & Wallace, 507, 557, 569.)
    The proposition has become fundamental and elementary, and, upon authority, would seem no longer to be open for discussion.
    The power to intervene and afford relief in such cases has been, possessed and exercised by them from the very origin of courts of equity in England. (2 Story Eq. Jur. § 716; 3 Parsons on Gont. 395, 396.)
    The ground for such intervention is, that a party who has received the benefit of the agreement will not be permitted to avail himself of the statute of frauds (so called); as to permit him to do so would be to make it a statute to protect frauds, instead of a statute to prevent them. (Jeremy on Equity, 436. See authorities above cited.)
    
    This is not a new question. There is scarcely a volume of equity reports in existence that does not show repeated instances of such interference; thus demonstrating the universality of the rule.
    Nor is it likely to become an obsolete question ; for while man shall continue to repose confidence in the honor and integrity of his fellow man, and until the whole human family shall become members of the legal profession, the necessity for the exercise of this wise guardianship over the rights of the honest, the confiding, and the ignorant, will continue.
    The only question that has been seriously litigated of late years has been, not as to the jurisdiction and power of the court, but as to what constitutes such a part performance of the agreement as to take the case out of the operation of the statute.
    This question cannot rise in this case, and is not embraced within my point, as in this case there was a full and complete performance on the part of plaintiff’s ancestor.
    II. The agreement found by the referee possesses all the elements’ of a valid contract, and, had it been reduced to writing, would have sustained an action at law.
    Equity will enforce any contract in relation to land, where there has been a sufficient part performance to take the case out of the operation of the statute, that would have constituted the basis of an action at law but for the inhibitions of thq statute.
    This was not a parol gift of real estate, as the appellants’ counsel claims, but it was an agreement to convey, based upon a valuable consideration. The contracting parties were father and son; the son had recently married, and expressed a determination to remove to the west with his family. He was then residing with his father on the Lake road, about seven miles from the land in controversy. The father owned fifty-eight acres of wild lands. He thereupon agrees with his son that if he will “ take possession of and clear up, reduce to cultivation and make improvements upon, a part of said piece of wild land, containing fifteen acres, to be taken off the southerly end of the lot, the fifteen acres shall become the property of the son, and that the father will convey the same - to him by a sufficient deed for that purpose.”
    Performance on the part of the son was in the nature of a condition precedent to the property becoming his. In a gift, this would be wholly unnecessary.
    This agreement was fully and entirely performed by the son. Upon such performance the land, if not before, became his; the father simply holding it as his trustee. (Jeremy on Equity, 446; Buckmaster agt, Harrop, 13 Ves. Jr. 456, 472; Pollexfen agt. Moore, 3 Atk. 272.)
    In the rendition of the necessary services and the expenditure of the requisite funds, in the performance of this agreement by the son, as well as in the enhanced value of the portion still belonging to the father consequent upon such performance, there is a sufficient consideration in law to sustain the agreement. Mor is this consideration either inequitable or inadequate. (3 Parsons on Cont. 359, and cases cited; Sheppard agt. Bevin, 9 Gill. 32, in point; Crosbie agt. McDonnel, 13 Ves. Jr. 148; Rerick agt. Kern, 14 S. & R. 271; King's Heirs agt. Thompson, 9 Peters, 204, in point; Syler agt. Eckert, 1 Binney, 378; McClure agt. McClure, 1 Barr. 374.)
    It was claimed by the' appellants’ counsel in the supreme court, and I presume will be claimed here, that this was a mere agreement to improve Seymour’s own land, and hence did not constitute a valid consideration for the agreement to convey.
    In this the counsel misconceives the case. The finding of the referee, as I have shown, renders the performance of the services and the making the improvements a condition precedent to the complete acquisition of title by the son, and hence there were all the essential elements of a valid consideration, as stated by all the elementary writers on the law of contracts.
    The land was to become Seymour’s upon performance. He performed. He was then entitled to the legal evidence of his title, to wit., a deed. The referee finds as conclusion of-law “ that said Seymour Lobdell, at the -time of his death, was justly and equitably entitled to a deed of conveyance in fee of said fifteen acres of land from said Pliny, who held the legal title thereof only as a trustee of said Seymour.” Seymour died in May, 1864; and to put the question beyond doubt, a conveyance was demanded of Pliny after Seymour’s death. (Jeremy on Equity, 446, and cases cited; 3 Parsons on Cont 360.)
    III. But it is insisted by the appellants that courts of equity have not the power to determine, from conflicting evidence, the particular terms of the contract entered into, but can only decree performance of such agreements as are admitted by the pleadings, or as to the terms of which there is no dispute.
    Such is not the law. There never was a ease decided, whether reported or not, that thus circumscribed the power and sphere of usefulness of such courts. (Parkhurst agt. Van Cortland, 14 J. R. 15 ; Fry on Specific Performance, 188, §§ 418, 204; Rhodes agt. Rhodes, 3 Sandf. 279, 281; Mundy agt. Jolliffe, 5 Myl. & Cr. 177; Burns agt. Sutherland, 7 Barr. 103, 106.)
    Courts of equity are governed by the same rules in this respect as courts of law, except that they apply them with greater freedom to the especial merits of the case. (3 Parsons on Cont. 357. See next point for further discussion.)
    
    IV. Analogous to this is the appellants’ position that to entitle the plaintiff's to recover they must prove the identical agreement set' out in the complaint.
    Hor is such the law. The practice at one time was, where there was a material variance between the agreement alleged and that proven, the bill would be dismissed without prejudice to filing a new bill. (Lyal agt. Miller, 2 Ves. Sr. 299; Mainwaring agt. Baxter, 5 Ves. Jr. 457; Woolam agt. Hearn, 7 Ves. Jr. 222; Malloy agt. Egan, 7 Irish Eq. R. 590; 8 Parsons on Cont. 354, and note o.)
    
    But the rule has been greatly modified, and instead of dismissing the bill, especially where there has been a part performance,the court will grant leave to amend the bill in accordance with the agreement proven, and then decree specific performance of the amended agreement. (Harris agt. Knickerbacker, 5 Wend. 638; Tilton agt. Tilton, 9 N. H. R. 585; Beard agt. Linthicum, 1 Md. Ch. Dec. 348.)
    Or the court will grant the decree upon the bill without amendment. (Mortimer agt. Orchard, 2 Ves. Jr. 243; Bass agt. Clivley, Tamlyn Ch. R. 80; Drury agt. Conner, 6 Harris & J. 288.)
    It is perfectly competent and proper for the court to determine from the evidence what the agreement was. (Rhodes agt. Rhodes, 3 Sandf 279, 281; Mundy agt. Jolliffe, 5 Myl. & Cr. 177; Burns agt. Sutherland, 7 Barr. 103,106.)
    The variance between the allegation and the proof in this case was not material. The supreme court has met this question squarely.
    The allegation in the complaint is a sale, deed to be delivered on request. In my second point I have\ minutely examined the agreement as found by the referee, which in law is a sale with an agreement to give a deed; and no time having been specified when delivery shall be made, means a delivery at any time,or on request. Had I not alleged a request, that point would have been here insisted on against me.
    At most it was a mere case of variance between the allegation and the facts proven, and the court had ample power on the trial or at general term, and this court has the same power, to order the proper amendment to be made. (Code of Proceedure, §§ 173,170, 171, 169.)
    And leave to amend is expressly given by the supreme court at general term.
    
      This court will, therefore, treat the case as though the contract found by the referee had been particularly alleged in the complaint..
    There is still another conclusive answer to this question. No question of variance was raised on the trial. It was therefore ivaived, and cannot be raised on the appeal. (Pike agt. Evans, 15 J. R. 210; Shall agt. Lathrop, 3 Hill, 237; Lawrence agt. Baker, 5 Wend. 301; Russel agt. Conn, 20 N. Y. R. 81; Catlin agt. Gunter, 11 N. Y. R. 368, 375; Barnes agt. Perrine, 12 N. Y. R. 18; Marine Bank agt. Fulton Bank, 2 Wall. U. S. 252.)
    
      Phillips agt. Thompson (1 John. Ch. R. 131), Harris agt. Knickerbacker (5 Wend. 638), were principally relied on by the appellants in the supreme court. The first was a bill of discovery and for specific performance, filed against commissioners appointed under a special act of the 1 egislature for the improvement of Walkill creek, heard before the chancellor, who determines, first, that, under the authority conferred by the act, the commissioners were not authorized to enter into any agreement but such as was valid at law {p. 142 to 146). There was therefore no need of equitable relief. He then proceeds to a lengthy examination of the evidence, which was very contradictory, for the purpose of ascertaining the precise terms of such agreement, if any, as was in fact made; thereby most clearly affirming our position, that the court does possess the power, and that it is entirely competent for it, to determine from conflicting evidence whether any agreement was made, and what were its precise terms; and he comes to the conclusion that the plaintiff has failed to establish his case by satisfactory evidence.
    At page 147, he says : “ the testimony as it respects the quantity of the proof on each side, may be considered as nearly balanced, but there are extrinsic circumstances arising out of the nature of the testimony, which inclines the balance in favor of the defendant.” And on page 149, the plaintiff “ has failed in satisfactory proof of his agreement; he fails, also, in showing such acts of performance as are necessary to be imputed to that agreement, and cannot reasonably be imputed to any other cause.”
    The chancellor declines to grant the relief prayed for, but inasmuch as defendants had in fact entered upon and appropriated a portion of plaintiffs’ land, he awards an issue to determine the amount of his damages. It is declared in the final decision (p. 151): “ But inasmuch as it does not satisfactorily appear to the court that any agreement has been piade by and between the parties,” he awards the issue.
    It will be borne in mind that this case was heard before the chancellor as an original question. Many of his generalizations, while they are doubtless well enough in the abstract, have no application to the case, and are obiter.
    
    The complaint in Harris agt. Knickerbacker (supra), alleged that the payments were to be on interest, which allegation was denied. The case was heard before Chancellor Walworth, who decreed specific performance, and that the defendant pay interest as prayed in the bill. Judge Marcy, in an elaborate opinion—many of the refinements of which are inapplicable under the Code—comes to the conclusion that the chancellor erred in allowing interest for a portion of the time for which he allowed it, on the ground that there was no evidence to sustain his finding ; and, also, that there was a variance between the allegation and proof, as to this interest. The real point of the case is stated thus by him (p. 652): “ The proof is that interest was to be paid after the first payment, which was to be made on the 20th December, 1815. In any view of the case then, the allegation that interest was to be paid on the purchase money from the date of the agreement, is not supportedand in the next paragraph he continues: “ there is not, in my opinion, sufficient evidence to support the decree in relation to the interest.”
    At page 658, he says: “ the contract proved, and the one charged, are, I think, substantially different; by the one interest is claimed from the 20th of September, 1815, on the whole consideration money unpaid; by the other, no interest was payable until after the purchase money fell due, and then only for the time during which there was a default of payment. Some part of this purchase money did not fall due until more than seven years after the date of the contract. On the ground of this variance, I think the chancellor should have dismissed the bill, or permitted it to be amended.”
    This the chancellor could not very well have done, as he had come to precisely the opposite conclusion on the questions of fact.
    The court then proceeded to reverse the judgment, but at the same time directed the court below to amend the bill in conformity to the agreement as found by the court of errors, and also that when amended it be specifically performed. I call the particular attention of the court to the order of reversal given in full on page 660.
    These cases abundantly show that it is the usual practice of courts of equity to determine, from the evidence, the terms of the contract made, and by amendment, or otherwise, if a proper case, will decree specific performance, no matter whether the contract proven is the same as that alleged or not.
    
      Jackson agt. Ashton (34 Barb. 186), has no application to this case, as the judgment was reversed on the ground that there had not been a sufficient part performance to take the case out of the statute.
    Had the son performed in German agt. Machin (6 Paige, 288), the decision had been otherwise. Performance is sufficient evidence of a promise.
    If the appellants’ position were sound, then all the defendant would have to do in order to defeat a recovery, would be to deny that the agreement was made as alleged.
    The rule as to granting amendments in case of variance, has been greatly relaxed under the Code. (Catlin agt. Gunter, 11 N. Y. 368 and 375.)
    Y. There is nothing in the point that the plaintiffs have recovered more land than was described in the complaint, or that there was not fifteen acres in the parcel lenced off.
    The proofs were all taken without objection, that the parcel of land to be conveyed was fifteen acres. It is too late to raise this objection now. (See point IV, and authorities.)
    
    And there is not a particle of direct proof as to the precise quantity of land embraced in the lot fenced off. It was assumed on the trial to contain just fifteen acres. The plaintiffs are content to take the fifteen acres, even if more was fenced off—they being willing to carry the agreement into effect just as it was made.
    "VI. There was no error in the ruling of the referee in excluding the testimony of Ammon Lobdell and of George E. Lobdell.
    The plaintiffs are the heirs-at-law of Seymour Lobdell, deceased, and claim title to the locus in quo, as such heirs, immediately through Seymour. The witnesses offered are defendants, and defend as devisees of Pliny Lobdell, and as such claim the title to this land.
    No matter about the peculiar phraseology of section 399 of the Code of 1862 ; its obvious meaning and intention are to prevent a party to an action, who claims title to the subject matter of the action, from testifying in his own behalf against heirs-at-law, to any matter or thing which he learned or acquired personally from their ancestor. The- section was intended to embrace not only what the ancestor said personally to the witness,- but what he said in the witness’ presence—to close the mouth of a living party to all verbal information he may have acquired in any manner, from the ancestor of the plaintiffs—to withhold from the living party the opportunity, as against the representatives of the deceased, to testify to that which, if the dead could arise and speak, they might controvert—to that which no living tongue can speak, save that of the living interested party.
    Such was the view the learned referee took of the section, and which has been affirmed by the supreme court, and I submit that it is correct.
    The sole question of construction in Simmons agt. Sisson (26 N. Y. 264), was whether under section 399 of the Code, prior to the amendment of 1862 (which was in force when this action was tried), a “ conversation ” was a “ transaction.”
    
      The observations of Justice Rosekbans on the amendment of 1862, are mere obiter as well as erroneous.
    VII. Even should this court conclude that the referee was in error in such rulings, it does not follow that the judgment must be reversed.
    The only question seriously litigated on the trial was “ about the terms upon which Seymour entered upon the land in question in other words, the nature and character of Seymour’s title.
    The defendants had already examined twelve witnesses on • this point, and subsequently called three more, these together with George, who testified generally in the cause except as to this point, make sixteen witnesses, whereas the plaintiffs called but nine.
    The rejected testimony was merely cumulative, and coming from a witness whose moral character was borne down by sixteen years of adulterous intercourse, and a large family of illegitimate children, could not, by any human possibility, ■have changed the result. As to the testimony of Ammon, there cannot be 'a pretence that the ruling was wrong.
    This is an action in equity. The well settled rule in courts of equity is, that a new trial will not be granted on account of the reception of improper, or the rejection of competent testimony, where it is plain to be seen that the result would have been the ■ same had the . improper evidence been rejected, and the competent evidence received. The plaintiff was only required to satisfy the conscience of the court, as the relief sought rested largely in the discretion of the court. (2 Story's Eq. Jur. § 742.)
    Where the result is satisfactory, courts of equity never reverse judgments on account of technical objections. (1 Graham & Waterman on New Trials, 579, and cases cited ; 1 Barb. Ch. Pr. 459; Baker agt. Ray, 2 Rus. Ch. R. 63, 66, 76-7 ; Bootle agt. Blundell, 19 Vesey Jr. Ch. R. 503.)
    This is a -proper case for the enforcement of the equity rule, and this court ought not to reverse the judgment on account of the rejection of this evidence, unless it is compelled to by force of the statute, for the reason that the section has since been amended, so that if a new trial were granted the witness could not be sworn.
    YIII. This judgment ought not to be reversed. ■ The decree was right. These homeless little children should have the little patrimony left them by their father, and that too, without further litigation. No rule of law has been violated. The ends of equity and justice are subserved by this decree. The case was heard before an excellent lawyer and a humane judge, who, after having seen all the witnesses, heard them testimony, and maturely considered the case, granted this relief, and I submit the case to this court of final resort, with the prayers of my infant clients that them title may be confirmed, and they relieved from this vexatious and expensive litigation.
   Parker, J.

This action is brought to compel a specific performance of an alleged parol agreement between the plaintiffs’ father and the defendants’ father, by which the former agreed to convey to the latter a piece of land.

The complaint states the agreement as follows : “ That on or about the first day of November, 1846, Pliny Lobdell, for a good and valuable consideration paid by Seymour • Lobdell to said Pliny, sold, and by parol, conveyed to said Seymour Lobdell, all that certain piece or parcel, of land,’ describing it by metes and bounds, “ containing about fourteen acres of land, more or less ; and at the same time said Pliny Lobdell yielded and gave up to said Seymour Lobdell the full and .complete possession of said lands and premises, and agreed to and with said Seymour Lobdell, to execute and deliver to him or his heirs, a good .and sufficient deed of conveyance thereof ,in writing, at any time, on request.”

It then sets forth that in pursuance'of such sale and conveyance, and relying upon the same, and upon the said promise to convey, by a good and sufficient deed, the said Seymour, with the knowledge and consent of said Pliny, took and entered into the possession of the whole of said lands, .and cleared up a large portion thereof, and tilled, cultivated and used, the same as his own continually, until Ms death, and while thus in possession, expended considerable sums of money in making substantial improvements, and erecting valuable buildings thereon, with the knowledge and approbation of said Pliny.

The answer denies the alleged sale and agreement- to convey, and the payment of any valuable consideration, and avers that the occupation of said Seymour was by the permission of said Pliny, who was his father, as tenant at will, and that such was at all times the understanding of the parties in respect to it. .

The case was tried before a referee, who found and reported that in November, 1846, the said Pliny Lobdell made a verbal agreement with said Seymour Lobdell, that if the said Seymour would take possession of, and clear up, reduce. to cultivation, and make improvements upon about fifteen acres, parcel of a piece of wild land owned by said Pliny, the said .fifteen acres should become the property of said Seymour, and that he, the said Pliny, would convey the same to him by a sufficient deed of conveyance for that purpose ; and that the'said Seymour took possession of said fifteen acres under said agreement, built a log house thereon, with Pliny’s assistance, moved his family into the house, and commenced to clear up the land, and built a barn on it; and in 1852 erected on it a framed dwelling house, into which he moved his family, and where he continued to reside until his death in May, 1864.

That while so residing on the premises, he cleared all of said fifteen acres but about three acres, farmed it, reduced it to cultivation, raised crops upon, it, and had the entire management, use and enjoyment of it, as of his own property.

That the said Pliny and Seymour built a line fence between it and the residue of the lot, on which residue, Pliny cleared up to the line fence on one side, and Seymour cleared up to it on the other; the said Pliny having built upon the said residue, where he lived for the last ten or twelve years of his life, and died in November, 1864.

As a conclusion of law, the referee found that the plaintiffs were entitled to judgment against these defendants who bring this appeal, that they convey the said fifteen acres to the plaintiffs.

The general term affirmed the judgment entered upon the report of the referee, and the defendants, who were decreed to convey, appeal to this court.

No question is raised but that the contract, if made as found by the referee, was taken out of the statute of frauds by the part performance, but the defendants’ counsel insists that the contract found is not sustained by any evidence; that at all events, it is not so clearly and satisfactorily proved as to make it a case for specific performance; that the failure to prove the contract set up in the complaint, should have produced a dismissal of the complaint; that the promise found was without valuable consideration; that the conditions were not fully performed by the promisee, and that the fifteen acres given to the plaintiffs was more than they were entitled to.

It is impossible to maintain that there is no evidence to support the findings of the referee.

The testimony of Nancy Lobdell, the widow of Pliny, that her husband told his two sons, Seymour and Ammon, that they might have fourteen acres a piece to go on to, and do the work as he did, and as long as they did as he wanted them to, they might stay on it; that they should clear it up in farmerlike style, and should not run over it; and (as stated in her cross-examination) that if they would go down on to this lot and cultivate it, the land should, sometime, be theirs, together with the fact that they did go down, and each take possession of the piece assigned him; that when some six months afterwards, they came and asked him for deeds or writings, which on his death would entitle.them to the land, he refused on the ground that his word was as good' as a writing; that Seymour did clear, cultivate and build on the piece assigned to him; that the father assisted in making the line fence, cutting it off from his other land, and recognized to various witnesses Seymour’s right to control it, and told the witness Oliver Pierce, after Seymour’s death, that he meant to have deeded it to Seymour before he died, is surely some evidence in support of the finding of the referee' as to the agreement and its terms.

Whether the court would have come to the same conclusion as the referee did, in regard to the contract, upon the whole evidence, we are not to inquire.

In an action for specific performance, as in other actions, the questions of fact, upon conflicting evidence, are for the court below, and not for this court, except in the case provided for in section 268 of the Code.

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 Stoey expresses it, that a court of equity ought not to act upon conjectures,” and 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. (2 Story’s Eq. Jwr. §§ 764, 767.) All this depends upon the evidence, and if evidence is given in the court below tending to the establishment of such a contract, the sufficiency of the proof to satisfy the mind of the court as to the existence of the contract, with the requisite degree of clearness and certainty, is not a matter for this court to consider.

The variance between the contract set up in the complaint and that found by the referee, is not such as to require a dismissal of the complaint.

Even under the former practice of the court of chancery, no such iron rule existed, but a variance might have led to an amendment of the bill, rather than its dismissal (Harris agt. Knickerbacker, 5 Wend. 638), or the court would sometimes decree a specific performance in favor of a plaintiff, notwitstanding he faffed to make out the case stated in his bill. (2 Story’s Eq. Jwr. § 770; Mortimer agt. Orchard, 2 Ves. Jr. 243.)

The rule of practice established by the Oode in regard to variances, however, whatever was the former rule, must now prevail in cases of this kind, as well as others.

The difference between the terms of the contract,1 as alleged, and those proved, in this case, was a mere variance, and was properly disregarded. (Code, §§ 169, 171.)

The promise to convey, as found by the referee, was not a mere voluntary one, but was made upon a valuable consideration, emanating from a loss or disadvantage to the promisee. Pliny said to Seymour, “If you will bestow certain work and labor upon this piece of land, I will convey it to you.”

It cannot be doubted that, if, after Seymour has done the work, Pliny refuses to convey, an action at law would lie for the breach of the contract.

The consideration is sufficient to support the promise. A court of equity does not require more, in this respect, than a court of law, except that it will look at the consideration, with reference to its adequacy, in order to ascertain whether the inadequacy is so great as to show the contract fraudulent or inconscionable; in which case it will refuse its aid, and leave the complainant to his action at law. (Seymour agt. Delancy, 3 Com. 445.)

On the other hand, “if the promisee, on the faith of the promise, does some act or enters into some engagements which the promise justified, and which a breach of the promise "would make very injurious to him, this, equity might regard as confirming áffid establishing the promise, in much the same way as a consideration for it would.” (3 Parsons on Cont. 359 ; Crosbie agt. McDonald, 13 Ves. 148.)

In Sheppard agt. Bevin (9 Gill. 32), it was held that money expended in improvement ®f land by a son, on the faith of an agreement of his parent to convey the land to him, constituted a consideration for which specific performance might be decreed against the heirs of the parent.

The case at bar is stronger than that. The consideration* is valuable, and there is no inadequacy; and the decreeing of a specific performance of the contract does not involve hardships or injustice against the defendants, while the denial of such a decree would operate as a fraud upon the plaintiffs.

Their ancestor, under whom they claim, executed his part of the agreement in the 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. (Parkhurst agt. Van Cortland, 1 John. Ch. 284; Malins agt. Brown, 4 Coms. 411; 2 Story’s Eq. Jur. § 759.)

The performance ox the agreement by Seymour Lobdell, as found by the referee, is I think, sufficient to entitle the plaintiffs to the conveyance.

There is no defect of performance, unless in the fact that about three acres of the fifteen remained uncleared.

The contract, as found, was, that Seymour should “ take possession of, clear up and reduce to cultivation, and make improvements upon, a part, of said piece of wild land containing fifteen acres.” All this he did, with the exception above mentioned; and this, 1 think, may well be deemed a substantial fulfillment of the contract on his part, especially as the referee also finds that the father at various times, while Seymour lived upon thó premises, assumed to direct trim as to the clearing of the same, and that Seymour regarded his directions as binding upon him, and obeyed the same.

In regard to the quantity of land contained in the piece fenced off for Seyinpur by the line fence built by him and his father, the referee also found that, although the exact quantity lying south of the fence was not distinctly proved, •yet the parties spoke of it, treated and supposed it to be fifteen acres.

The conclusion of law, that the said Seymour Lobdell, at his death, was justly and equitably entitled to a deed-of conveyance in fee of said fifteen acres of land from said Pliny, and the direction of judgment for a conveyance to the plaintiffs of said fifteen acres of land,, does not give them any land north of the said division fence; and if the plaintiffs in then." judgment have so described the land as to include land north of such fence, the defendants* remedy for such wrong is not to be had upon this appeal, but by application to the court below to correct the judgment in that respect.

Upon the trial, Ammon Lobdell and George Lobdell, the defendants, against whom the decree to convey was made, were sworn as witnesses, and each was sought to be examined in his own behalf in respect to the arrangement made between Pliny Lobdell, them father, and Seymour Lobdell, in their presence, under which Seymour entered into possession of the land in question; which was objected to by the plaintiff’s, on the ground that the witnesses were not competent, under the 399th section of the Code, to testify to such transactions.

The objection was sustained, and the defendants excepted.

The 399th section of the Code, as it stood at the time of the trial, authorized parties to be witnesses in their own behalf, in the same manner as other witnesses; “ provided,' however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be. examined in his own behalf, in respect to any transaction or communication had personally by said assignor or said party, respectively, with a deceased person, against parties who are the executors, administrators, heirs at law, next of kin or assignees of such deceased person,” &c.

In this case, a party to the action sought to be examined in his own behalf. So far he had a right to testify, and it •was against parties who were the heirs at law of a deceased person.

This was not sufficient to exclude him, unless the subject matter of his testimony was a transaction or communication had personally by him with such deceased person.

Plow, the transaction or communication respecting which he sought to testify was not between himself and the deceased person, or, in the explicit language of the statute, “had personally by said party with a deceased person,” but betweeh the deceased person and a third person.

I am unable to see why he was not a competent witness to that transaction, or how, without extending the limitation further than the statute'has done, he could be excluded.

Although it may be said that a party standing in the relation in which he does ought to have been excluded, for he has the same advantage over the plaintiffs as a witness as his father would have had if living and standing as defendant in the suit, still, unless the section, as it stood, can be construed so as to exclude him, the legislature, and not the court, must rectify the omission.

It will'not suffice to say the case is within the spirit of the enactment, unless a fair construction of the language used will bring it within the enactment itself.

The subject of the section is the allowance of parties to be witnesses in their own behalf, and its object is to provide generally for their examination as such witnesses, and the specific exceptions to such examination.

The legislature having undertaken to specify the exceptions, the courts cannot allow any that are not specified by the legislature.

When the legislature explicitly limited the exclusion of a party to cases in which he should offer to testify in respect to a transaction or communication had personally by him with the deceased person, it is impossible to construe that exclusion as meaning to cover transactions of communications had with a third person, whoever he may be, and however connected with the- party offering to testify, with the deceased person.

Such construction would ignore the terms had personally by him,” which serve to show the precise extent of the exclusion.

The testimony of those parties which was excluded was upon a vital point in the case, the proof in regard to which was conflicting.

We cannot say but that it would have overbalanced all the evidence of a contract to convey, and have satisfied the referee that none had been made.

The error of their exclusion, if it was one, as I think it was, is therefore ground for reversal of the judgment and the granting of a new trial.

The judgment should be reversed and a new trial ordered ' costs to abide the event.  