
    Nancy M. Kenyon and Margaret E. Hoard, App’lts, v. Louvina Youlan, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 20, 1889.)
    
    1. Ejectment—Debenüe.
    In an action of ejectment, it appeared that the plaintiffs’ devisor had agreed with the defendant and another whose interest she afterwards succeeded, that if they would move on the place and take care of the said devisor during her life, she would convey or devise the land in question to them. Held, that as defendant could compel specific performance of the contract, it constituted a defense to the action.
    2. Evidence—Code, § 829.
    Defendant was asked, “Was there a time when you went to live with G. P. ? ” Held, that as the plaintiffs were not the personal representatives of and did not derive their title or interest through or under G. P., the question was not objectionable under section 829 of the Code.
    Appeal from a judgment in favor of the defendant, entered in Herkimer county, and from an order denying the plaintiffs’ motion for a new trial made on the minutes of the court.
    
      Jos. J. Dudleston, Jr., for app’lts: Smith & Steele, for resp’t.
   Martin, J.

This action was ejectment. The premises involved consist of a house and lot situated in the village of Frankfort, M. Y. They were owned by Mary Piper, deceased, in her lifetime. 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 V. Piper, whereby the decedent agreed to convey or devise the premises to them in consideration of their moving on to 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 on to 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 on 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 argreement upon her part, the defendant and said George agreed to move on to 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 on to 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, under 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 plaintiff 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 case. Freeman v. Freeman, 43 N. Y., 34; Pomeroy on Specific Performance, 30;. Smith v. Smith, 51 Hun, 164.

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 plaintiff 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 requires 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 case 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; Merwin, J., not sitting.  