By the court, Marvin, J.
Action to compel specific performance of parol contract concerning land.
The plaintiffs allege in their complaint that in November, 1846, Pliny Lobdell, for a good and valuable consideration paid by Seymour Lobdell, sold, and by parol conveyed to Seymour Lobdell a certain piece of land, describing it. Seymour Lobdell entered into possession and made improvements. He died intestate in May, 1864. The plaintiffs are Ms heirs at law. He was the son of Pliny, who died in [12]*12November, 1864, having devised, the land in question to some of the defendants.
The referee found the agreement was “ that if Seymour would 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 said lot, the fifteen acres should become and be the property of Seymour, and that he, Pliny, would convey the same to him by a sufficient deed for that purpose.”
The whole tract of land owned by Pliny, the father, was some fifty-eight acres. The referee found that Seymour took possession of the fifteen acres under the agreement; that he built a log house aided by his father, and moved his family into it in the fall of 1847; he cleared all the land except about three acres and cultivated it. A line fence was built by him and his father between the fifteen acres and the residue of the land, and Pliny, the father, improved and occupied the residue. Seymour built a barn on the fifteen acres, and in 1852 a framed house. In short, the finding of facts by the referee shows that he fully performed on his part. He claimed to be the owner of the fifteen acres, and on several occasions requested his father to convey the land to him. His father refused, but frequently said he should give him a deed when he, Pliny, died.
The counsel for the appellants objects that the agreement as set forth in the complaint is widely different from that found by the referee; that the former was a sale and the latter an agreement to give the land, if Seymour cleared it up; and he claims that in this action there can be no recovery unless the identical agreement set out in the complaint is proved; and he cites several cases which were decided prior to the Code. I apprehend that the rule is not as strict now as it formerly was. This is not a case where the allegations of the cause of action were unproved in their entire scope and meaning; and the variance was not material. No one has been misled. If necessary, the complaint could have been amended, and may be even now. No question of [13]*13variance was raised upon the trial (See Code, §§ 169, 170, 171,173). The objection is untenable.
The defendant Ammon Lobdell, a son of Pliny, and one of the devisees of the land, was a witness for defendants. The defendants offered to prove by him a conversation as to the terms-upon which Seymour entered upon the land in question held between Seymour and Pliny in presence of witness, and in which conversation the witness took part. Upon objection the evidence was excluded, and the defendants excepted. The plaintiffs claimed, as the heirs of Seymour, and the witness Ammon claimed as the devisee of his father, Pliny. By the Code (§ 399), a party to an action cannot be examined in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person against parties who are executors, administrators, heirs at law, next of kin, or assignees of such deceased person, when they have acquired title to the cause of action immediately from said deceased person, and have been sued as such by the executors, administrators, heirs at law, next of kin or assignees.
The present action is by the heirs at law of Seymour Lob-dell, and it is against the devisees of Pliny Lobdell. The devisee of the land is offered as a witness to prove a conversation between Pliny and Seymour, and in which he took part, for the purpose of defeating the title of the heirs of Seymour and establishing his own title. In my opinion the offered evidence was properly excluded.
The object of the ■ evidence was to show by the declarations or confessions of Seymour Lobdell, facts tending to defeat the title of the plaintiffs, his heirs. The defendant, witness, participated in the conversation: but in my opinion, if he had taken no part in the conversation, he would not have been permitted to give evidence of the conversation of these deceased parties. This question is also in the case of George Lobdell, another defendant and devisee, who was a witness, and the offer was made to prove by him a conversation in his presence between Pliny and Seymour, about the terms upon which the latter entered upon the land in question. In [14]*14this offer nothing is said of the witness taking part in the conversation. In my opinion it is not material whether the witness took part in the conversation or not. The broad objection is that he proposed by his evidence of the confessions or declarations of the deceased father of the plaintiffs, to defeat their title as the heirs at law, and to establish his own title, he being a defendant. It may perhaps be said that the case does not come “ literally within the words of the statute ’’—any transaction or communication had personally by the witness with the deceased father of the plaintiff, but in my opinion it is within the intention of the statute. The mischief to be guarded against is obvious. We are referred to Simmons agt. Sisson (26 N. Y. R. 276), in which it was held that a conversation between the deceased and a third -party, overheard by the defendant, might be proved by the defendant as a witness—that the hearing of such conversation was not “ a transaction had personally between the deceased and the party” within the meaning of the Code. After the trial of that cause the Code was amended by inserting “ or communication ” after the word “ transaction.” In that case Justice Rosekrans took notice of the amendment of 1862, and remarked that “ even as the section now stands, it does not prohibit a party testifying to a conversation between the deceased and a third person heard by the party, and in which he did not participate.” This was obiter. In the case under consideration both the parties to the conversation are dead. The witness claims title under one of them, and the plaintiffs under the other, and against the party deceased, under whom the witness defendant claims.
It is objected that the agreement as found by the referee ought not to be decreed to be specifically performed. It. is argued that it rested upon no sufficient consideration. It is undoubtedly a rule in equity that a specific performance of an agreement will not be decreed unless the agreement is founded upon a sufficient consideration. The plaintiffs must make a meritorious case. In this case, according to the findings of the referee, Pliny Lobdell, the father of Sey[15]*15mour, owned about fifty-eight acres of wild, uncultivated land, and he proposed to his son Seymour, who had recently been married, that he should go on to one end of the land- and there clear it up, &c., &c., make improvements, and that he would convey to him fifteen acres off of that end of the land, or in the language of the referee “the fifteen acres should become and be his property, and he, Pliny, would convey it to him.” Seymour performed. It was certainly an important undertaking on his part.
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By the court, Marvin, J.
Action to compel specific performance of parol contract concerning land.
The plaintiffs allege in their complaint that in November, 1846, Pliny Lobdell, for a good and valuable consideration paid by Seymour Lobdell, sold, and by parol conveyed to Seymour Lobdell a certain piece of land, describing it. Seymour Lobdell entered into possession and made improvements. He died intestate in May, 1864. The plaintiffs are Ms heirs at law. He was the son of Pliny, who died in [12]*12November, 1864, having devised, the land in question to some of the defendants.
The referee found the agreement was “ that if Seymour would 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 said lot, the fifteen acres should become and be the property of Seymour, and that he, Pliny, would convey the same to him by a sufficient deed for that purpose.”
The whole tract of land owned by Pliny, the father, was some fifty-eight acres. The referee found that Seymour took possession of the fifteen acres under the agreement; that he built a log house aided by his father, and moved his family into it in the fall of 1847; he cleared all the land except about three acres and cultivated it. A line fence was built by him and his father between the fifteen acres and the residue of the land, and Pliny, the father, improved and occupied the residue. Seymour built a barn on the fifteen acres, and in 1852 a framed house. In short, the finding of facts by the referee shows that he fully performed on his part. He claimed to be the owner of the fifteen acres, and on several occasions requested his father to convey the land to him. His father refused, but frequently said he should give him a deed when he, Pliny, died.
The counsel for the appellants objects that the agreement as set forth in the complaint is widely different from that found by the referee; that the former was a sale and the latter an agreement to give the land, if Seymour cleared it up; and he claims that in this action there can be no recovery unless the identical agreement set out in the complaint is proved; and he cites several cases which were decided prior to the Code. I apprehend that the rule is not as strict now as it formerly was. This is not a case where the allegations of the cause of action were unproved in their entire scope and meaning; and the variance was not material. No one has been misled. If necessary, the complaint could have been amended, and may be even now. No question of [13]*13variance was raised upon the trial (See Code, §§ 169, 170, 171,173). The objection is untenable.
The defendant Ammon Lobdell, a son of Pliny, and one of the devisees of the land, was a witness for defendants. The defendants offered to prove by him a conversation as to the terms-upon which Seymour entered upon the land in question held between Seymour and Pliny in presence of witness, and in which conversation the witness took part. Upon objection the evidence was excluded, and the defendants excepted. The plaintiffs claimed, as the heirs of Seymour, and the witness Ammon claimed as the devisee of his father, Pliny. By the Code (§ 399), a party to an action cannot be examined in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person against parties who are executors, administrators, heirs at law, next of kin, or assignees of such deceased person, when they have acquired title to the cause of action immediately from said deceased person, and have been sued as such by the executors, administrators, heirs at law, next of kin or assignees.
The present action is by the heirs at law of Seymour Lob-dell, and it is against the devisees of Pliny Lobdell. The devisee of the land is offered as a witness to prove a conversation between Pliny and Seymour, and in which he took part, for the purpose of defeating the title of the heirs of Seymour and establishing his own title. In my opinion the offered evidence was properly excluded.
The object of the ■ evidence was to show by the declarations or confessions of Seymour Lobdell, facts tending to defeat the title of the plaintiffs, his heirs. The defendant, witness, participated in the conversation: but in my opinion, if he had taken no part in the conversation, he would not have been permitted to give evidence of the conversation of these deceased parties. This question is also in the case of George Lobdell, another defendant and devisee, who was a witness, and the offer was made to prove by him a conversation in his presence between Pliny and Seymour, about the terms upon which the latter entered upon the land in question. In [14]*14this offer nothing is said of the witness taking part in the conversation. In my opinion it is not material whether the witness took part in the conversation or not. The broad objection is that he proposed by his evidence of the confessions or declarations of the deceased father of the plaintiffs, to defeat their title as the heirs at law, and to establish his own title, he being a defendant. It may perhaps be said that the case does not come “ literally within the words of the statute ’’—any transaction or communication had personally by the witness with the deceased father of the plaintiff, but in my opinion it is within the intention of the statute. The mischief to be guarded against is obvious. We are referred to Simmons agt. Sisson (26 N. Y. R. 276), in which it was held that a conversation between the deceased and a third -party, overheard by the defendant, might be proved by the defendant as a witness—that the hearing of such conversation was not “ a transaction had personally between the deceased and the party” within the meaning of the Code. After the trial of that cause the Code was amended by inserting “ or communication ” after the word “ transaction.” In that case Justice Rosekrans took notice of the amendment of 1862, and remarked that “ even as the section now stands, it does not prohibit a party testifying to a conversation between the deceased and a third person heard by the party, and in which he did not participate.” This was obiter. In the case under consideration both the parties to the conversation are dead. The witness claims title under one of them, and the plaintiffs under the other, and against the party deceased, under whom the witness defendant claims.
It is objected that the agreement as found by the referee ought not to be decreed to be specifically performed. It. is argued that it rested upon no sufficient consideration. It is undoubtedly a rule in equity that a specific performance of an agreement will not be decreed unless the agreement is founded upon a sufficient consideration. The plaintiffs must make a meritorious case. In this case, according to the findings of the referee, Pliny Lobdell, the father of Sey[15]*15mour, owned about fifty-eight acres of wild, uncultivated land, and he proposed to his son Seymour, who had recently been married, that he should go on to one end of the land- and there clear it up, &c., &c., make improvements, and that he would convey to him fifteen acres off of that end of the land, or in the language of the referee “the fifteen acres should become and be his property, and he, Pliny, would convey it to him.” Seymour performed. It was certainly an important undertaking on his part. The clearing up of the land and the erection of the necessary buildings, and it may be that Pliny derived a direct benefit in the enhanced value of his remaining land. He moved on to that a few years after and improved it. This case is much like Williston agt. Williston (41 Barb. S. C. R. 635).
Assuming the facts as found by the referee, I agree with him that the case of the plaintiffs is meritorious, and that ' they are entitled to the relief given them. Whether the agreement as found by the referee was ever made, I certainly have much doubt. I have read all the evidence with much care. The case was to turn upon the character of the possession of Seymour Lobdell, the father of the plaintiffs. Did he enter into possession in the character of a purchaser and occupy and improve the property as his own ? Mrs. Lobdell, the mother of the plaintiffs, was a witness, and states "that she was present when the agreement was made between her husband and his father. This was in 1846 or 1847. She says that Pliny told Seymour that he could have that fifteen acres of land for what he owed him; that is what Pliny owed Seymour, and to go on to it and take possession of it, and Seymour told him he would. In her cross-examination she stated that soon after they moved on to the place, she and her husband told Pliny that they wanted a deed, and he said he would not give them a deed until he died, because he wanted to give Seymour the whole fifty-five acres, and that he said this several times.
Joel S. Smith was a witness for the plaintiffs, and stated that he had a talk with Pliny two or three years previous to the trial. Witness inquired about Seymour’s health, and [16]*16remarked to Pliny that he ought to do pretty well by Seymour, as he had stood by him from a boy, and taking his health into consideration; Pliny said he intended to; that he had set him off fifteen acres of land as his own, and intended to do more at his death if he should not outlive the boy.
Houghton Clough was a witness, and proved that upon his application to Pliny for some whitewood logs, Pliny stated that Seymour had some to sell; witness saw Seymour and bought some logs of him.
Alexander Petrie was a witness; Pliny told this witness that Seymour was pressing him for a deed of the place, and that he did not incline to give him a deed at present; that he considered his word good for that amount of land. This was all the evidence given in chief touching any agreement for a title to the land.
A large number of witnesses, some fifteen or more, were examined by the defendants; a large portion of them were relatives, including Mrs. Pliny Lobdell. Their evidence-tended strongly to show that Seymour did not enter upon the land and make the improvements under any agreement by which his father was to convey the land to him, but that the object of Pliny was to provide a home for Seymour (who was much out of health), and that he probably intended to give the fifteen acres to him when he, Pliny, should die.
The evidence shows that Seymour often claimed that his father was to give him a deed, and he often requested a deed; Pliny denied that he was under any obligation to give him a deed, and always refused to do so. It would seem from the evidence of Mrs. Lobdell, the mother of Seymour, that there was at one time an understanding that Seymour should go on to the land (she speaks of fourteen acres) and his brother go on to the other portion (fourteen acres), and use, and improve and occupy the lands respectively, in a maimer to please their father, and that they should have it when he died.
That Pliny was in debt to Seymour when he went on to the land, or at any time thereafter, is, I think, clearly disproved. He worked for his father a short time after he was [17]*17of age, and by the testimony of the mother he was fully paid for this. It appears that he, Pliny, assisted Seymour about building the house, &c.
When the defendants rested, the plaintiffs called four or five additional witnesses, who testified to conversations with Pliny, mainly to the effect that he, Pliny, had given the fifteen acres to Seymour, or that he recognized the land as belonging to him, or that Seymour was to have the land, or that he had set it off to him. In short, I think the evidence shows an intention on the part of Pliny, that Seymour should have the land when he, Pliny, should die. . Some of the evidence tends strongly to show that he had already given the land to Seymour. The case, however, must rest mainly on the evidence of the mother of the plaintiffs, and it must have been mainly upon her evidence that the referee found the agreement. The case is very peculiar. I am not prepared, upon the- whole case, to dissent from the conclusion drawn by the referee from the testimony. The witnesses were before him. The case is not destitute of equity, and upon the whole, I think the judgment should be affirmed.
All the judges concurring, judgment affirmed.