Miller, P. J.
This action is brought to compel the spe cific performance of an alleged contract for the sale of a small tract of land situated in the county of Essex in this State; and the question to be determined is, whether a lawful agreement was made and carried into effect, in part, between John 0. Hammond, the original owner of the premises, as vendor, and Albert Hubbard, deceased, under whom the plaintiff claims. It is contended that the contract was within the statute of frauds, and therefore void. It was not in writing, as required by the statute (2 R. S., 135, § 8); and, being a paroi agreement, can only be enforced, and a specific [249]*249performance decreed, upon the ground that there was a part performance, which takes it out of the statute. (2 R. S., 135, § 10.) Upon the trial, there was evidence which tended to establish, and the judge at Special Term found, that in the year 1856, Hubbard made a paroi contract with Hammond for the purchase of the premises for the sum of $300, payable on demand, by which Hubbard was to build and keep in repair all partition fences, and, upon full payment of the amount, a warranty deed of the premises was to be executed; that Hubbard, with the knowledge of Hammond and the defendant (who at the time was the agent of Hammond), entered into the possession and cultivation of the premises, and so continued until the time of his death, which occurred in 1859.
He also finds and the testimony shows, that on the 20th of October, 1856, Hubbard paid fifty dollars to Hammond, for which he took a written receipt, which provided that it was “ to apply on contract for the payment of land, and afterward on the 13th day of June, 1857, Hubbard paid the sum of $100, for which a receipt was also given to apply in payment toward land.” These findings, I think, are abundantly sustained by the evidence. It is perhaps true that the payment of a part of the purchase-money, of itself, was not enough to take the case out of the statute of frauds. (Fry, 403; Wil. Eq. Juris., 184; 2 Story, Jur., 1; Rhodes v. Rhodes, 3 Sand. Ch. R., 279.) But payment made within a reasonable time, in connection with possession under a paroi agreement, and accompanied by other acts, which cannot be recalled, so as to place the party in the same situation he was in before, will take a paroi agreement out of the statute of frauds. (Lowry v. Tew, 3 Barb. Ch. R., 413.) It is necessary, however, in order to take a case out of the statute of frauds upon the ground of part performance of a contract, that the existence of the agreement should be made out by clear and satisfactory proof, and that the act of performance is of the identical contract. (Parkhurst v. Van Cortland, 14 Johns., 15 ; Philips v. Thompson, 1 Johns. Ch., 131,149 ; [250]*250Fry, 387; Wil. Eq. Jur., 286.) It is claimed by the defendant’s counsel, that the possession taken was not in pursuance of the paroi contract proved, as there was no agreement to that effect. By the agreement proved Hubbard was to fence the land, which was an act of possession of itself, and which was followed up by improvements and an actual occupancy until Hubbard’s death in 1869. The evidence shows that the defendant, who acted as Hammond’s agent, had knowledge of the possession by Hubbard, and made no objection on his behalf; that he had a deed prepared for Hammond to execute, in May, 1857; that he saw Hammond and asked him if Hubbard had got the deed. Hammond said he had not paid; asked if Hubbard was in possession; was told that he was, and he said he ought not to occupy it unless he paid. Soon after this, as I understand, in June, 1857, Hubbard paid $100. With full knowledge of the fact, Hammond allowed him to continué in possession until he died, in June, 1858. Hammond knew that Hubbard was in possession under the contract, and both parties clearly understood that the possession was taken and the money paid in part performance of this identical paroi agreement, for the purchase of the lot. Hammond’s brother, who, after Hammond’s death, held the title, allowed Hubbard to remain until the latter’s death. The widow then continued in possession after her husband’s death unmolested, except an entry made by the defendant in 1860, which was successfully resisted, and not of such a character as was tantamount to a positive act of re-entry, or a recovery in an action of ejectment. Both parties acquiesced in Hubbard’s possession. It was not forbidden, and no action was brought to recover damages, on the premises; and as there was no'other contract, the inference is irresistible, that the possession was taken and held under the paroi agreement.
These acts were unequivocal and significant and resulting from the agreement. Hubbard or his representatives could not recover back the money paid, or for his improvements. He or they will lose all, unless a specific performance is decreed, and will suffer an injury amounting to a fraud by a [251]*251refusal to execute the agreement. Under the circumstances Hubbard or his representatives could not be placed in the position they occupied before part performance. (3 Barb. Oh., 413; 28 How., 370; 44 Barb., 138.)
It is urged that the contract is forfeited by lapse of time. Although there has been some delay in making the payments, it was acquiesced in by Hammond during his life, and since his death the brother of Hammond, and the widow of the deceased entered into negotiations to complete the purchase. Time was not originally the essence of the contract, and where such is the case, it may be waived by the acts of the parties. Fo time of payment was specified in the agreement. A forfeiture may be waived by partial payments by. the vendee after the time prescribed, and the vendor cannot then stop suddenly short, and insist upon a forfeiture for the nonpayment of arrears remaining unpaid, without any previous notice of his intention to do so if the arrears are not paid. (Harris v. Troup, 8 Pai., 423 ; Voorhies v. De Meyer, 2 Barb., 37.) Taking all the facts and circumstances into consideration, it appears that there was a recognition of the contract and an acquiescence in it. It was allowed to rest undisturbed without any action by either party, or notice of an intended forfeiture; and I am not prepared to say .that there was such a want of promptness in asserting the rights of the deceased, as precludes a decree for a specific performance. The objection that too long a period of time has elapsed, is therefore no obstacle to the plaintiff’s claim in this action.
I think that the interest of Hubbard under the contract was the subject of a legal sale under the statute. (2 R. S. Ill, § 66.)' The statute cited provides, that “ if the deceased at the time of his death was possessed of a contract for the purchase of land,” &c., his interest may be sold. This includes all contracts which can be lawfully enforced whether oral or in writing, and whether the estate be a legal or an equitable one. The statute is of a remedial character, broad and comprehensive in its terms, and embraces every interest in land to which a party may be entitled by virtue of any [252]*252contract, for the purchase thereof, at the time of his decease. Nor is there any force, in my opinion, in the suggestion, that there is no power to sell under a contract when the payments have become due and unpaid (and especially if they become due in the lifetime of the deceased) except where the deceased was assignee of a contract, and that the provisions of sections 40, 41, 42 of the act of 1837 are confined to the case of a deceased assignee. (S. L.
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Miller, P. J.
This action is brought to compel the spe cific performance of an alleged contract for the sale of a small tract of land situated in the county of Essex in this State; and the question to be determined is, whether a lawful agreement was made and carried into effect, in part, between John 0. Hammond, the original owner of the premises, as vendor, and Albert Hubbard, deceased, under whom the plaintiff claims. It is contended that the contract was within the statute of frauds, and therefore void. It was not in writing, as required by the statute (2 R. S., 135, § 8); and, being a paroi agreement, can only be enforced, and a specific [249]*249performance decreed, upon the ground that there was a part performance, which takes it out of the statute. (2 R. S., 135, § 10.) Upon the trial, there was evidence which tended to establish, and the judge at Special Term found, that in the year 1856, Hubbard made a paroi contract with Hammond for the purchase of the premises for the sum of $300, payable on demand, by which Hubbard was to build and keep in repair all partition fences, and, upon full payment of the amount, a warranty deed of the premises was to be executed; that Hubbard, with the knowledge of Hammond and the defendant (who at the time was the agent of Hammond), entered into the possession and cultivation of the premises, and so continued until the time of his death, which occurred in 1859.
He also finds and the testimony shows, that on the 20th of October, 1856, Hubbard paid fifty dollars to Hammond, for which he took a written receipt, which provided that it was “ to apply on contract for the payment of land, and afterward on the 13th day of June, 1857, Hubbard paid the sum of $100, for which a receipt was also given to apply in payment toward land.” These findings, I think, are abundantly sustained by the evidence. It is perhaps true that the payment of a part of the purchase-money, of itself, was not enough to take the case out of the statute of frauds. (Fry, 403; Wil. Eq. Juris., 184; 2 Story, Jur., 1; Rhodes v. Rhodes, 3 Sand. Ch. R., 279.) But payment made within a reasonable time, in connection with possession under a paroi agreement, and accompanied by other acts, which cannot be recalled, so as to place the party in the same situation he was in before, will take a paroi agreement out of the statute of frauds. (Lowry v. Tew, 3 Barb. Ch. R., 413.) It is necessary, however, in order to take a case out of the statute of frauds upon the ground of part performance of a contract, that the existence of the agreement should be made out by clear and satisfactory proof, and that the act of performance is of the identical contract. (Parkhurst v. Van Cortland, 14 Johns., 15 ; Philips v. Thompson, 1 Johns. Ch., 131,149 ; [250]*250Fry, 387; Wil. Eq. Jur., 286.) It is claimed by the defendant’s counsel, that the possession taken was not in pursuance of the paroi contract proved, as there was no agreement to that effect. By the agreement proved Hubbard was to fence the land, which was an act of possession of itself, and which was followed up by improvements and an actual occupancy until Hubbard’s death in 1869. The evidence shows that the defendant, who acted as Hammond’s agent, had knowledge of the possession by Hubbard, and made no objection on his behalf; that he had a deed prepared for Hammond to execute, in May, 1857; that he saw Hammond and asked him if Hubbard had got the deed. Hammond said he had not paid; asked if Hubbard was in possession; was told that he was, and he said he ought not to occupy it unless he paid. Soon after this, as I understand, in June, 1857, Hubbard paid $100. With full knowledge of the fact, Hammond allowed him to continué in possession until he died, in June, 1858. Hammond knew that Hubbard was in possession under the contract, and both parties clearly understood that the possession was taken and the money paid in part performance of this identical paroi agreement, for the purchase of the lot. Hammond’s brother, who, after Hammond’s death, held the title, allowed Hubbard to remain until the latter’s death. The widow then continued in possession after her husband’s death unmolested, except an entry made by the defendant in 1860, which was successfully resisted, and not of such a character as was tantamount to a positive act of re-entry, or a recovery in an action of ejectment. Both parties acquiesced in Hubbard’s possession. It was not forbidden, and no action was brought to recover damages, on the premises; and as there was no'other contract, the inference is irresistible, that the possession was taken and held under the paroi agreement.
These acts were unequivocal and significant and resulting from the agreement. Hubbard or his representatives could not recover back the money paid, or for his improvements. He or they will lose all, unless a specific performance is decreed, and will suffer an injury amounting to a fraud by a [251]*251refusal to execute the agreement. Under the circumstances Hubbard or his representatives could not be placed in the position they occupied before part performance. (3 Barb. Oh., 413; 28 How., 370; 44 Barb., 138.)
It is urged that the contract is forfeited by lapse of time. Although there has been some delay in making the payments, it was acquiesced in by Hammond during his life, and since his death the brother of Hammond, and the widow of the deceased entered into negotiations to complete the purchase. Time was not originally the essence of the contract, and where such is the case, it may be waived by the acts of the parties. Fo time of payment was specified in the agreement. A forfeiture may be waived by partial payments by. the vendee after the time prescribed, and the vendor cannot then stop suddenly short, and insist upon a forfeiture for the nonpayment of arrears remaining unpaid, without any previous notice of his intention to do so if the arrears are not paid. (Harris v. Troup, 8 Pai., 423 ; Voorhies v. De Meyer, 2 Barb., 37.) Taking all the facts and circumstances into consideration, it appears that there was a recognition of the contract and an acquiescence in it. It was allowed to rest undisturbed without any action by either party, or notice of an intended forfeiture; and I am not prepared to say .that there was such a want of promptness in asserting the rights of the deceased, as precludes a decree for a specific performance. The objection that too long a period of time has elapsed, is therefore no obstacle to the plaintiff’s claim in this action.
I think that the interest of Hubbard under the contract was the subject of a legal sale under the statute. (2 R. S. Ill, § 66.)' The statute cited provides, that “ if the deceased at the time of his death was possessed of a contract for the purchase of land,” &c., his interest may be sold. This includes all contracts which can be lawfully enforced whether oral or in writing, and whether the estate be a legal or an equitable one. The statute is of a remedial character, broad and comprehensive in its terms, and embraces every interest in land to which a party may be entitled by virtue of any [252]*252contract, for the purchase thereof, at the time of his decease. Nor is there any force, in my opinion, in the suggestion, that there is no power to sell under a contract when the payments have become due and unpaid (and especially if they become due in the lifetime of the deceased) except where the deceased was assignee of a contract, and that the provisions of sections 40, 41, 42 of the act of 1837 are confined to the case of a deceased assignee. (S. L. of 1837, 531,532; 2 R. S., Ill, §§ 66 to 68.) This would be too narrow and restricted a construction of the law, and I think was not intended.
Various objections are made to the validity of the sale and the proceedings before the surrogate. The defendant was a stranger to the proceedings, he makes no- claim under Hubbard or his heirs, and if the proceedings can be questioned collaterally we can only inquire as to those objections which relate to the jurisdiction of the surrogate. (Sheldon v. Wright, 1 Seld., 497, 511; Stanton v. Ellis, 2 Kern., 577; Sibley v. Waffle, 16 N. Y., 180, 185 ; Ackley v. Dygert, 33 Barb., 176, 191; Bloom v. Burdick, 1 Hill, 130.)
The counsel for the defendant insists that the proceedings of the surrogate were improperly received in evidence, and were void on several grounds. 1st. That the first petition to sell was defective in not stating the amount of personal property which had come to the hands of the applicants, and only what had been a/ppraised ; nor the application thereof, nor the debts outstanding against the intestate. There were three petitions in all which related to the sale, the last two being intended to supply defects real or supposed, which existed in the first one. The first one states that the amount of personal property which has come to their hands as appraised as by inventory is, &c. This is, clearly, enough. What has been appraised includes what • has come to their hands, and is a substantial statement thereof. The statement that they have received a certain sum in-money, which is in their hands, and yet unapplied in the first petition, shows what has been paid and what remains,, and, therefore, the application of all the moneys received. [253]*253It was not necessary that the whole should have been applied. (S. L. 1837, 531, § 41.) The amount of the debts is stated in gross in the first petition; and if this is a defect it is supplied by a statement of the debts in detail in the second. It is enough that they appear in the papers upon which the order of sale was made. The three petitions may be taken together as a part of the same proceeding. It is merely a matter of practice, and although it would be more formal if the first one contained all that was necessary, it is not a fatal objection to the proceeding that defective statements are supplied.
2d. It is said that the third petition is defective, and gave no jurisdiction; it recites the previous proceedings and states, that through inadvertence the lot of land in controversy was omitted and left out, and asks for the usual order for a sale, and refers to the first petition for authority to mortgage, lease or sell, &c., and to the orders made thereon. I think it was sufficient to refer to the former petition, and this made it perfect, and embodied all the facts essential to confer jurisdiction. The two petitions together showed the debts, the amount of the property on hand, all the real estate and every other requisite to make out a case for a sale, and there was no such change in the nature of the case or the facts between June, 1860 and August, 1861, as to authorize the conclusion that the last petition in connection with the others did not make out a case. The blending of the two together would at most be an irregularity which would not affect the jurisdiction of the officer, and, if at all objectionable, the objection would more properly be presented, on the hearing or upon the direct application to set aside the proceedings for that reason. It was not a jurisdictional defect in any sense which can be successfully assailed in a collateral proceeding.
3d. It is said that a guardian for the infant should have been appointed. The answer to this position is, that a guardian was originally appointed, and if the proceedings are to be taken as a whole, which I think is proper, then the original guardian was sufficient.
[254]*2544th. It is also urged that the bond was not valid. This objection comes too late, and cannot be available here. The bond was in the penalty of $400, and recited that the amount unpaid on the contract was $175. This recital, even if defective, must control, and I think in form it was correct.
5th. It is objected further, that the petitions were improperly verified before a justice of the peace by one of the petitioners. The statute does not name an officer before whom the petition must be verified. (2 R. S., 100, § 2.) It would, therefore, appear to be sufficient, that it was sworn to before an officer authorized to administer oaths.
6th. It is also urged, that the land should not have been sold, but the contract assigned. I think a sale was proper, and within the meaning, of the statute. The deceased had an interest in the land under a contract which was partially executed, and this interest was the subject of the application and of the sale.
Some other objections are urged which do not require discussion ; and after a careful examination, I am satisfied that the sale was valid, and there is no such defect in the proceedings, as to authorize this court to declare that no title was conferred by the deed made in pursuance thereof.
The objection urged, that the children and hems of Hubbard are necessary parties to this action, I think, cannot be maintained. The sale by the surrogate’s order has divested them of all claim. But if the objection is tenable, it has been waived by the failure of the defendant to raise it by answer or demurrer. (Code, § 144, § 148.)
The several objections made to the introduction of evidence, I think, are not valid. Even if some portions of the evidence received were objectionable, it was not of such a character as to materially affect the decision of the case.
bfor do I think that the findings were erroneous. Whether they were correct or not depends upon other questions which I have fully discussed; and as there was no error of the justice in his decision of any of them, I think that the findings can .lawfully and properly be upheld.
[255]*255After a careful examination of the points urged in the elaborate argument of the defendant’s counsel, I am satisfied that there was no error upon the hearing of the case, and that the decree entered at Special Term should be affirmed with costs.
Judgment affirmed.