#### RUFUS B. DREW, Appellant, *v.*DAVID BUCK, Respondent.

*Evidence of pa/i'ol agreement cotemporaneous with written lease*— when *admissible— Voluntary lease*— *validity of.*

In 1852 the defendant leased to his mother certain premises for the term of her natura1 life, no rent being reserved thereby. He continued in possession up to the time of the commencement of this action. In 1867 the mother assigned her lease and claim for use and occupation to the plaintiff, and subsequently, in 1872, she conveyed the premises to the defendant for a valuable consideration, he having no notice of the prior assignment. In an action by the plaintiff to recover for the use and occupation of the land, the defendant was allowed, against the plaintiff’s objection and exception, to testify that at the time of the making of the lease it was agreed that he should remain in possession of the same without paying rent; that his mother was to live with him whenever she wished, and that its object was to provide a permanent and safe homo for her.

*Eeld,*that the evidence was properly admitted, as it did not tend to contradict or vary the terms of the lease to his mother, but simply established the terms of the agreement under which he continued in possession under his mother.

Although an executory agreement to give a lease, not founded upon a valuable consideration, may not be valid, yet a lease duly executed in pursuance thereof is.

Appeal from a judgment in favor of tlie defendant, entered on tbe report of a referee dismissing tbe complaint, with costs.

Tbe action was to recover for tbe use' and occupation of real estate. On tbe 1st of September, 1852, tbé defendant, wbo was tbe owner in fee of tbe real estate in question, executed and delivered to bis mother, Esther Buck, a lease of tbe premises for tbe term of her natural life. Tbe consideration expressed was one dollar, and no rent was reserved in tbe lease. Tbe defendant was in possession of tbe premises prior to, and at tbe time of, tbe execution of tbe lease, and be continued in possession to tbe time of tbe commencement of this action, in December, 1873. In 1867, Esther Buck assigned tbe lease and her claim for use ^nd occupation to tbe plaintiff. In 1872, for a valuable consideration, she conveyed tbe premises to tbe defendant, be having no notice of her assignment to tbe plaintiff. Tbe referee found that tbe lease was executed by tbe defendant voluntarily, without consideration, and upon tbe understanding and agreement that be was to remain in tbe possession and have tbe control of tbe premises, tbe *268same thereafter as before, and without any compensation therefor, but with the understanding that his mother should have the right to live on the premises with him if she wished, and that the lease was made for her safety, so that she might have a home and not be turned out of doors in case of the death of the defendant or his inability to support her on the premises.

*J. W. & II. J.*Dininay, for the appellant.

*A. Hadden,*for the respondent.

Smith, J.:

The referee having found upon testimony sufficient, if properly received, to warrant the finding, that the defendant, since the execution of the lease to his mother, has occupied the premises under an agreement with her, that he was not to pay rent, but was to permit her to live with him on the premises if she wished, which privilege she enjoyed, for aught that appears, at all times when she chose, the case was properly disposed of, unless, as the appellant’s counsel contends, the testimony on which such finding is based was not competent evidence. The defendant himself was a witness in his own behalf, and he testified that the agreement referred to was made with his mother by parol, at the time when the written lease was executed. The plaintiff, who claims as the assignee of the defendant’s mother, objected to the evidence in due season, on the ground that it intended to contradict the lease., The decision of the referee overruling the objection presents the principal question in the case. We think the ruling was correct. It was incumbent on the plaintiff to establish two propositions : First, that his assignor, Mrs. Buck, had an estate in the land, and secondly, that the defendant occupied as her tenant under an agreement, express or implied, to pay for the use of the premises. To establish the first proposition, he introduced the written leafee, and it was competent, and *prima facie*sufficient, to show that the defendant’s mother had a life estate in the premises. But it did not tend, in any manner, to make out that the defendant was her tenant. The only evidence introduced by the plaintiff on that subject was proof of the fact that, subsequently to the execution *269of tlie life lease, the defendant continued to occupy the premises with the knowledge and permission of the life tenant, from which fact the 'relation of landlord and tenant might be implied. It was, therefore, competent for the defendant to prove any circumstance which tended to repel that implication; not to contradict the lease, which was of no consequence except as proving the estate of the plaintiff’s assignor, but to show the real nature of his holding. The agreement under which the defendant continued in possession was distinct from the lease executed by him, although made at the same time. If the parol agreement had provided that the defendant should continue to occupy notwithstanding the lease, and pay a specified rent to his mother, it would have been competent for thé plaintiff to prove it. We think the testimony was properly received. The letters written by the defendant, undoubtedly tended in some degree to contradict his testimony, but he was corroborated by his brother, Lester W. Buck, and the decision of the referee upon the question of fact raised by the conflicting testimony is conclusive. The plaintiff, as the assignee of Mrs. Buck, took the claim in suit, subject to all the defenses then existing against it.

After tiie testimony of the defendant respecting the parol agreement between himself and his mother was introduced, the plaintiff moved to strike it out, on the ground that the plaintiff’s assignor, Mrs. Buck, was of unsound mind, and therefore, the testimony oi the defendant was inadmissible under section 399 of the Code. The motion was based on certain testimony given by David Buck, a son of Mrs. Buck, called as a witness by the plaintiff after the defendant had rested. The testimony was as follows: *“*I don’t think my mother is competent to be examined as a witness; in my opinion she has been in that condition since she has been in Woodliull; in my opinion she can understand what you tell her, but she don’t remember a few minutes after, what she has been talking about; her incompetency is from her want of recollection and intelligence; I first saw that this spring.” The motion was denied, and we think, properly. The witness, a layman, stated no facts or circumstances from which the referee could judge of the mental condition of Mrs. Buck. Ilis testimony was nothing more than the expression of his opinion upon a purely legal question *270namely, the competency of Mrs. Buck to be examined as a witness, based upon a general statement to the effect that he had recently noticed in her a lack of recollection and intelligence, which may have been nothing more than the ordinary impairment of the mental faculties, incident to old age. This view of the matter renders it unnecessary to discuss the question whether the statute applies to a person other than one judicially declared to be of unsound mind, and whether the motion to strike out was not too late, the objection not having been taken to the testimony when it was offered and received, no 'opinion is intended to be expressed on these points.

It is insisted by the respondent’s counsel that the dismissal of the complaint may well stand upon the ground that the lease executed by the defendant to his mother was without consideration. We do not assent to that position. It may be that a mere executory and unexecuted agreement to lease, without consideration, would not give a right of action. But in this case, the arrangement which, according to the claim of the defendant, was entered into by the parties, through the lease and the cotemporaneous parol agreement, has been fully executed, and the defendant cannot now be heard to say that the lease was void and conveyed no estate. His real ground of defense is, that by the express terms of his holding he was not to pay rent.

The judgment should be affirmed.

Present — Talcott, P. J., Smith and Merwin, JJ.

Judgment affirmed.