(77 Hun, 1.)

#### COOPER et al. v. MONROE et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Statute op Frauds—Part Performance.

Possession of land under an agreement to convey in payment for services rendered is, after the statute of limitations has run against the-claim for services, such part performance as will take the case out of' the statute of frauds.

3. Witness—Competency—Party in Interest.

A husband’s right of curtesy initiate does not give him such an interest in his wife’s land as to disqualify him, under Code Civ. Proc. § 829, from’ testifying in favor of his wife as to communications with decedent concerning the land.

Appeal from circuit court, Chautauqua county.

*223Action by Harriet Cooper, Sarah E. Cooper, and Lncy A. Edes against Caroline Monroe and Simon Monroe to recover possession of certain real estate. From an order granting a new trial on the minutes of the court after a t-erdict in favor of defendants, defendants appeal. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

S. W. Mason, for appellant Caroline Monroe.

A. B. Ottoway, for appellant Simon Monroe.

H. C. Kingsbury, for respondents.

HAIGHT, J.

This action is in ejectment to recover the possession of a house and lot of the value of about §450, in the village of Westfield, known as “The Exchange.” Henry Walker was the owner of the premises in question. The plaintiffs claim title as devisees under the last will and testament of Walker, which has been duly proved and admitted to probate. The appellant Caroline Monroe claims to be the equitable owner and entitled to retain the possession of the premises. The defendant Simon Monroe is her husband. Henry Walker and Caroline Monroe were brother- and sister. The evidence produced upon the trial on the part of the defendants tends to show that in the year 1868 Walker and the defendant Caroline had a mother that was aged and sick; that Walker then told Caroline that if she would take their mother home with her, and take care of her, he would pay her well for it; that she thereupon took her mother to her house, and cared for her until the time of her death, which was in the year 1874. In May, 1889, the defendants were living in the city of Buffalo, and Walker then agreed with the defendant Caroline to give her the house and lot in question for a home, in payment for what he owed her for taking care of his mother, and wanted her to remove from Buffalo to Westfield, take possession of the house and lot, and occupy it as her home; that in June following she did so, and has so continued to occupy the same ever since. In May, 1890, Walker executed his last will and testament, in which he first directed the payment of bis debts, and- then gave, devised, and bequeathed “all the rest, residue, and remainder of my estate, both real and personal, to my sister, Harriet P. Cooper, and my nieces Mrs. Lucy Edes and Sarah Cooper, share and share alike.” In June following he suddenly died from an injury received.

The only evidence offered on behalf of the plaintiffs aside from the records was to the effect that Walker had in his lifetime kept the property insured in his own name. The case was submitted to the jury, and the verdict was in favor of the defendants. The trial court ordered a new trial upon the ground that the evidence was not sufficient to sustain the verdict. The reasons stated in the opinion written by the court are as follows:

“To free the case from the operation of the statute it must appear that the purchaser expended money or made improvements which he would not have done except in reliance upon performance by the seller, and to recover for which he is remediless. The payment of the consideration and the simple *224act of taking possession has been field not to be sucfi a part performance ■of tfie contract upon the part of the purchaser as to invoke the power of the court to decree specific performance.” ■ Citing Lowry v. Tew, 3 Barb. Ch. 407; Malins v. Brown, 4 N. Y. 403-410; Freeman v. Freeman, 43 N. Y. 34; Miller v. Ball, 64 N. Y. 286; Hutchins v. Hutchins, 98 N. Y. 56-66; Haight v. Childs, 34 Barb. 189; Winchell v. Winchell, 100 N. Y. 159, 2 N. E. 897.

We do not understand these cases as they appear to be understood by the trial court. In none of them was this question presented for determination. In Malins v. Brown, supra, the judge writing the opinion says that “payment of the purchase money and being let into possession are sufficient,” citing the case of Dugan v. Gittings, 3 Gill. 138-157; and the same expression was used by this court in the case of Devinney v. Corey (Sup.) 5 N. Y. Supp. 289. Several of the elementary writers, and some of the decisions of the courts in other states, appear to support these expressions. Our view of the question is that the payment of the consideration to the vendor and the delivery of the possession by him to the vendee may in some cases, and in others not, be sufficient performance of the contract to enable the purchaser to invoke the power of a court of equity to decree specific performance. In Lowry v. Tew, supra, the chancellor says:

“The principle upon which courts of equity hold that a part performance of a parol agreement is sufficient to take the case out of the statute of frauds is that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid because it -was not in writing; * * * in other words, upon the ground of fraud in refusing to execute the parol agreement after a part performance thereof by the other party, and where he cannot be placed in the same situation that he was in before such part performance by him. Taking possession under a parol agreement, and in compliance with the provisions of such agreement, accompanied with other acts, which cannot be recalled, so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the operation of the statute of frauds.”

The question is, therefore, as to whether the vendee, in taking possession of the premises, has done any act for which he cannot be fully compensated in an action at law. If he has expended money in placing permanent improvements upon the premises, or paid the taxes thereon, he could not recover therefor in an action at law, and to deprive him of the premises would be a fraud upon him where the improvements were made and the taxes paid upon the reliance of the parol agreement of the vendor to convey the lands to him. Ordinarily the payment of the consideration in whole or in part could be recovered back in an action at law, but in case the vendor had in the mean time become insolvent, or if the statute of limitations had run against the plaintiff’s claim, the vendee could not be restored to the same situation that he was in before the agreement, and to restore the premises to the vendor under such circumstances would operate to defraud the vendee of the money that he had paid thereon. In such case we think equity would have power to compel specific performance, and that this view is in accord with the general doctrine of the cases referred to. Kenyon v. Youlan (Sup.) 6 N. Y. Supp. 784.

*225Again referring to the facts of this case, we find that Walker gave the premises to the defendant Caroline in payment for what he owed her in taking care of his mother. This was a legal obligation. He had agreed to pay her in case she would take his mother, and take care of her. She performed on her part. It is the duty of children to take care of their aged and indigent parents. Walker, in promising to pay for the care of his mother, was but performing a duty that rested upon him. The defendant Caroline accepted the premises as payment upon such indebtedness. The services were rendered in 1874,—nearly 20 years ago,—and the inference is that the statute of limitations has now run against the claim; so that, if she is now deprived of the premises, she must lose her claim for services rendered. It may be said that the statute of limitations had run when the agreement was made. Whether it had or not we are unable to determine from the evidence presented. Ho claim of that character appears to have been made upon the trial, and, if there had been, we think it would have made no difference, for Walker had the right to waive the statute, and recognize his obligation to pay, and this he appears to have done by the agreement in question. It is therefore apparent that if she now be deprived of the premises, she will lose her claim for services. This would be a fraud upon her which equity has the power to prevent. If the facts are such that equity would afford her relief, she may avail herself of them as an equitable defense to this action. Cavalli v. Allen, 57 N. Y. 508.

An exception was taken to the evidence of Simon Monroe as to conversations had with Walker in reference to the conveyance of the premises in questions to the defendant Caroline. It was claimed that he had such an interest as would disqualify him under section 829 of the Code; that he might become entitled to a life estate as tenant by curtesy. This question was fully considered by this - court in Be Clark, 40 Hun, 233-237, and the conclusion was then reached that the husband did not have such an interest in the real property of his wife as to disqualify him from being a witness. A different conclusion appears to have been reached by this court in the case of Devinney v. Corey, supra, but the question does not there appear to have been fully considered, or the attention of the court called to the former decision. Children may become heirs at law of their parents, and as such entitled to the real property of which the parents may die seised, but during the lifetime of the parents the children are not vested with any interest in the real estate, and are consequently not disqualified, under the provisions of the Code, from testifying; and the same, we think, may be said in reference to a husband. He has no present interest. The wife may convey or devise by will, and thus deprive him of any estate that he otherwise might have had upon her death. In order to be disqualified under the Code, the witness must have a present, certain, and vested interest, not an interest remote, uncertain, or contingent. Hobart v. Hobart, 62 N. Y. 80; Nearpass v. Gilman, 104 N. Y. 507, 10 N. E. 894; Wallace v. Straus, 113 N. Y. 238-241, 21 *226N. E. 66. See also Whitman v. Foley, 125 N. Y. 651-659, 26 N. E. 725. The order appealed from should be reversed, and judgment ordered for the defendants upon the verdict. All concur.