Opinion by
Mr. Justice Thompson,
The parties through whom the appellants and appellees claim title had in 1874 distinctive claims against each other, one for the use of property for boating purposes and the other for iron sold, and at that time owned different properties, some of which were situated on the river front and others back from it. By their exchange it was concluded they could be best utilized. Accordingly they entered into a parol contract to adjust their differences and to exchange their respective properties. Brown, one of these parties, was to take the river front lots, and for them to exchange the back lots,' and Graff, Bennett & Co., the other party, was to take the back lots, and for them to exchange the river front lots. This agreement was executed and consummated by the delivery of possession of the lots as agreed, but no deeds were executed and delivered. This was done in 1874, and since then Brown continued in possession of the river front property, using it in connection with his landing for boats up to the date of his death. Since then by partition it has been allotted to one of his heirs. Graff, Bennett & Co. have since the exchange been in possession of the back lots, collected the rents of the small buildings upon them ; have filled up the low ground of them, and have paid taxes and assessments for municipal purposes against them.
Notwithstanding the criticism based upon some minor differences between the testimony of Colonel Schoonmaker and that of Mr. Graff, the evidence of the parol agreement for exchange was clear, precise and indubitable, and thus clearly established, consummated by proofs of actual possession, it was not within the statute of frauds and perjuries.
[129]*129In Moss v. Culver, 64 Pa. 414, it is said by Mr. Justice Agsbw : “ It is true, as has been often said, there is no difference between a parol sale and an exchange in regard to the requisites to take it out of the statute of frauds and perjuries. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much requisites of a parol exchange as of a sale. But there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or dependence on, any other subject. The evidence of possession taken of it is therefore confined to the single subject, and if not taken in a reasonable time, or so as to make it doubtful whether it is attributable to the contract, the parol sale is not taken out of the statute. But an exchange necessarily has a subject on each side which stands related to the other. One is the representative of the other, so much so that the law implies a contract of warranty bj^ the act of exchanging. If therefore the evidence shows a clear, unequivocal and complete taking possession of one of the subjects of an exchange by the party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Evidence of possession that might seem weak and inconclusive in the case of a parol sale, is thus made clear and convincing in the case of an exchange.”
In Johnston v. Johnston, 6 Watts, 370, it is said by Mr. Justice Rogers : “ It is undoubtedly true that an agreement for the exchange of land is within the statute of frauds and must be in writing: Rice v. Peet, 15 John. 503; Price v. Pell, Co. Lit. 447. But the specific execution of a parol agreement for an exchange will be decreed in equity when the agreement has been carried into effect in whole or in part. Although I do not find this point expressly adjudicated, yet it comes within the spirit of decisions which have been made in this state.”
In Reynolds v. Hewett, 27 Pa. 176, it was held that “where there is a parol exchange of lands there must be a delivery of possession, but the evidence in reference to the time of possession will admit of greater latitude than in the case of a parol sale of land.”
Since 1874 until the present suit, brought in 1890, no question has been raised in regard to the agreement and no attempt [130]*130has been made to.effect its rescission. Taxes have been paid, the ground improved by filling in, it may be at no great cost, and municipal improvements have been paid. Under these circumstances the appellants, in attempting to defeat the parol agreement, do not present themselves with any equity that would command consideration. It is said in Sower’s Admr. v. Weaver, 84 Pa. 268, by Mr. Justice Gordon: “ Equity is loth to undo a gift or contract at the instance of one who has neglected to move for its rescission, until the passing years have grafted new equities upon the transaction, until the donee has grown old and has spent the vigor of his age and the prime of his manhood in the use and improvement of a property long regarded as his own.”
But it is earnestly argued that the defence goes to the enforcement of the agreement and seeks for specific performance, and that as Brown is dead the court below had no jurisdiction, the orphans’ court alone having exclusive jurisdiction. The appellants brought this ejectment for the possession of these lots against appellees, the vendees of the assignee of Graff, Bennett & Co., and when they make a defence to it, based upon parol exchange followed by possession in pursuance of it, contend that it must fail because it amounts to a claim for specific performance of which the eourt had no jurisdiction. As the parol agreement is clearly established, and as possession was delivered in pursuance of it, and as Graff, Bennett & Co. and their vendees continued in notorious and exclusive possession, and paid taxes and municipal claims, the appellees had no reason or occasion to resort to the orphans’ court, because the agreement was in fact performed.
This action was brought to recover possession of the premises from appellees, alleged to be unlawfully withheld by them from appellants, and the court in which it was brought had jurisdiction to inquire into the circumstances under which such possession was obtained. But if appellees were out of possession, as in Myers v. Black, 17 Pa. 198, and Porter v. Dougherty, 25 Pa. 405, and were seeking to recover possession by the enforcement of a contract made with a decedent, as the act of 1834 gives the orphans’ court full power to make and enforce decrees for specific performance in actions where the vendors are dead, the jurisdiction of the court of common pleas [131]*131in sncb cases would doubtless fail. Sueb jurisdiction by reason of the act in question attaches to the orphans’ court in order to complete its jurisdiction over decedents’ estates, but in this case the exchange was in the lifetime of the decedent and was fully consummated by an adverse and notorious possession continued by Graff, Bennett & Co. and the appellees down to the present time, so that upon the death of Mr. Brown the property did not belong to him or become any part of his estate. The proofs establish clearly and indubitably an equitable title in the appellees, and, if so, they had a right to make the defence and the court below the jurisdiction to determine it.
In Lewis v. Baker, 151 Pa. 533, it is said by Mr. Justice Williams: “When the chancellor remitted them to a court of law he meant necessarily that upon the facts disclosed by them they must wait till their possession was attacked, if it ever should be, and then set up all the facts by way of an equitable defence to such action. This they have done.
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Opinion by
Mr. Justice Thompson,
The parties through whom the appellants and appellees claim title had in 1874 distinctive claims against each other, one for the use of property for boating purposes and the other for iron sold, and at that time owned different properties, some of which were situated on the river front and others back from it. By their exchange it was concluded they could be best utilized. Accordingly they entered into a parol contract to adjust their differences and to exchange their respective properties. Brown, one of these parties, was to take the river front lots, and for them to exchange the back lots,' and Graff, Bennett & Co., the other party, was to take the back lots, and for them to exchange the river front lots. This agreement was executed and consummated by the delivery of possession of the lots as agreed, but no deeds were executed and delivered. This was done in 1874, and since then Brown continued in possession of the river front property, using it in connection with his landing for boats up to the date of his death. Since then by partition it has been allotted to one of his heirs. Graff, Bennett & Co. have since the exchange been in possession of the back lots, collected the rents of the small buildings upon them ; have filled up the low ground of them, and have paid taxes and assessments for municipal purposes against them.
Notwithstanding the criticism based upon some minor differences between the testimony of Colonel Schoonmaker and that of Mr. Graff, the evidence of the parol agreement for exchange was clear, precise and indubitable, and thus clearly established, consummated by proofs of actual possession, it was not within the statute of frauds and perjuries.
[129]*129In Moss v. Culver, 64 Pa. 414, it is said by Mr. Justice Agsbw : “ It is true, as has been often said, there is no difference between a parol sale and an exchange in regard to the requisites to take it out of the statute of frauds and perjuries. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much requisites of a parol exchange as of a sale. But there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or dependence on, any other subject. The evidence of possession taken of it is therefore confined to the single subject, and if not taken in a reasonable time, or so as to make it doubtful whether it is attributable to the contract, the parol sale is not taken out of the statute. But an exchange necessarily has a subject on each side which stands related to the other. One is the representative of the other, so much so that the law implies a contract of warranty bj^ the act of exchanging. If therefore the evidence shows a clear, unequivocal and complete taking possession of one of the subjects of an exchange by the party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Evidence of possession that might seem weak and inconclusive in the case of a parol sale, is thus made clear and convincing in the case of an exchange.”
In Johnston v. Johnston, 6 Watts, 370, it is said by Mr. Justice Rogers : “ It is undoubtedly true that an agreement for the exchange of land is within the statute of frauds and must be in writing: Rice v. Peet, 15 John. 503; Price v. Pell, Co. Lit. 447. But the specific execution of a parol agreement for an exchange will be decreed in equity when the agreement has been carried into effect in whole or in part. Although I do not find this point expressly adjudicated, yet it comes within the spirit of decisions which have been made in this state.”
In Reynolds v. Hewett, 27 Pa. 176, it was held that “where there is a parol exchange of lands there must be a delivery of possession, but the evidence in reference to the time of possession will admit of greater latitude than in the case of a parol sale of land.”
Since 1874 until the present suit, brought in 1890, no question has been raised in regard to the agreement and no attempt [130]*130has been made to.effect its rescission. Taxes have been paid, the ground improved by filling in, it may be at no great cost, and municipal improvements have been paid. Under these circumstances the appellants, in attempting to defeat the parol agreement, do not present themselves with any equity that would command consideration. It is said in Sower’s Admr. v. Weaver, 84 Pa. 268, by Mr. Justice Gordon: “ Equity is loth to undo a gift or contract at the instance of one who has neglected to move for its rescission, until the passing years have grafted new equities upon the transaction, until the donee has grown old and has spent the vigor of his age and the prime of his manhood in the use and improvement of a property long regarded as his own.”
But it is earnestly argued that the defence goes to the enforcement of the agreement and seeks for specific performance, and that as Brown is dead the court below had no jurisdiction, the orphans’ court alone having exclusive jurisdiction. The appellants brought this ejectment for the possession of these lots against appellees, the vendees of the assignee of Graff, Bennett & Co., and when they make a defence to it, based upon parol exchange followed by possession in pursuance of it, contend that it must fail because it amounts to a claim for specific performance of which the eourt had no jurisdiction. As the parol agreement is clearly established, and as possession was delivered in pursuance of it, and as Graff, Bennett & Co. and their vendees continued in notorious and exclusive possession, and paid taxes and municipal claims, the appellees had no reason or occasion to resort to the orphans’ court, because the agreement was in fact performed.
This action was brought to recover possession of the premises from appellees, alleged to be unlawfully withheld by them from appellants, and the court in which it was brought had jurisdiction to inquire into the circumstances under which such possession was obtained. But if appellees were out of possession, as in Myers v. Black, 17 Pa. 198, and Porter v. Dougherty, 25 Pa. 405, and were seeking to recover possession by the enforcement of a contract made with a decedent, as the act of 1834 gives the orphans’ court full power to make and enforce decrees for specific performance in actions where the vendors are dead, the jurisdiction of the court of common pleas [131]*131in sncb cases would doubtless fail. Sueb jurisdiction by reason of the act in question attaches to the orphans’ court in order to complete its jurisdiction over decedents’ estates, but in this case the exchange was in the lifetime of the decedent and was fully consummated by an adverse and notorious possession continued by Graff, Bennett & Co. and the appellees down to the present time, so that upon the death of Mr. Brown the property did not belong to him or become any part of his estate. The proofs establish clearly and indubitably an equitable title in the appellees, and, if so, they had a right to make the defence and the court below the jurisdiction to determine it.
In Lewis v. Baker, 151 Pa. 533, it is said by Mr. Justice Williams: “When the chancellor remitted them to a court of law he meant necessarily that upon the facts disclosed by them they must wait till their possession was attacked, if it ever should be, and then set up all the facts by way of an equitable defence to such action. This they have done. After twenty years of exclusive and peaceable possession, their right to an equal undivided one half is at the last moment challenged by their brother in an action of ejectment. They are now in a court of law where the decree in equity sent them. They have a right to set up any facts that make it inequitable for their brother to assert his legal title against them.”
In Winpenny v. Winpenny, 92 Pa. 442, in holding a first ejectment conclusive, Mr. Justice Gordon said: “By the present plaintiffs, against the same defendant and for the same property, an action of ejectment was instituted, in the year 1869, in the former district court, which resulted in a verdict and judgment for the defendant. In that suit, Joseph Win-penny claimed, as he does in the present one, the premises in dispute, under and by virtue of a parol contract with his father, John Winpenny. The substance of the terms of that contract was as follows: The father owed the son some five hundred dollars, and in payment thereof agreed to sell and make him, the son, a deed for the property in controversy. Joseph accepted this proposition, went into possession, and has continued that possession ever since, but he never received the .promised deed. On trial of the present suit, the defendant put in evidence the record of the former case, together with the evidence, substantially as above stated, upon which it was tried. Thereupon the court below directed a verdict for the defendant, on [132]*132the ground that the former judgment, having been rendered for Joseph Winpenny upon an equitable title, was conclusive and a bar to a second suit.” Again he says : “ The equitable character of the contract being thus established, it only remains to consider whether a single action of ejectment is conclusive of the rights of the parties. If, however, the establishment of the legal title, and its enforcement by the action of ejectment, must, under our system, be effected by what is equivalent to a decree determining the invalidity of the equity, this is not an open question. In such case the only inquiry would be, has Joseph the right to set up his equitable title as a defence ? If he has such right, upon that title a court must pass, as would a court of chancery, and its judgment must be equivalent to a decree. We need not add that such a decree by a chancellor would be final and conclusive.”
As the appellees were defending the right to their possession of the property, their equitable defence was properly within the jurisdiction of the court in which appellants had brought their action. The defence established by the proofs was a complete bar to their right to oust them of possession, and if so was clearly within the jurisdiction of the court. In one breath, appellants, by their ejectment, put them upon a defence and deny their right to make it, alleging want of jurisdiction. The jurisdiction of the orphans’ court conferred by the act in question, however exclusive it may be for certain purposes, cannot thus be successfully invoked to defeat an equitable defence and oust a possession which equity would protect.
The exclusion of the proofs in regard to the dumping of cinders by Graff, Bennett & Co. upon the river front lot was proper, because they substantially offered to prove a trespass and not a dispossession, and the rejection of the deed by which Graff, Bennett & Co., four years subsequent to the exchange, granted to the Pittsburgh & Lake Erie Railroad Company a right of way was also proper, because the grant was limited to the right “so far as same may pass over our lands,” and would have been nugatory after the exchange became perfected. The assignments in regard to the offers of proofs in regard to those subjects are not sustained. The appellants’ abstract of title filed having furnished the information required, the third assignment of error is not sustained.
Judgment affirmed.