By the Court, Bacon, J.
I am. by no means prepared to say that I should assent to all the conclusions stated by the county judge of Lewis in his findings of fact, in this case. But there is enough in the evidence, if credited, to warrant the judgment for specific performance. From the testimony it is made to appear that in the year 1837 the plaintiff, who was then a resident in Oswego county, was induced to remove to Turin, in Lewis county, upon the invitation of his brother George Williston, to reside with him; that after remaining together some time, the plaintiff working for the said George, the latter removed to another house he had erected on his farm, and the plaintiff remained in the original tenement, upon the agreement that he was to receive a deed of the lot, being about one acre, on condition that he should at his own exclusive cost and expense build and maintain all the division fences upon the premises, and be entitled to all the improvements he should make thereon. The value of these premises, at that time, did not exceed the sum of $75. In pursuance of this agreement, and in full reliance upon its performance, the plaintiff immediately began to make additions to, and improvements upon the premises, which he continued from time to time until he had expended thereon a sum exceeding $1000. He continued to maintain the division fences, paid all the taxes assessed upon the premises, for a series of years, and until after the death of George Willis-ton, and had exclusive and notorious possession, and the apparent ownership for all this period. The rights he claimed were never interfered with by George, but on the contrary he frequently acknowledged the existence of an agreement by which he was bound to convey the premises to the plaintiff down to a period not many months before his death, and averring that the only reason for not executing the conveyance [641]*641was certain pecuniary embarrassments of the plaintiff, which would make it imprudent to convey until that impediment was removed. These are the substantial facts of this case, and about which there is really no controversy; and they present a strong case for equitable relief, unless the claim has been forfeited by the unexplained and inexcusable laches of the plaintiff, or there has been some erroneous ruling on the trial.
It is objected, preliminarily, by the defendant, that the county court had no jurisdiction of the subject matter of the action, and could not decree specific performance. Itis enough to say that by the 7th subdivision of § 30 of the code, jurisdiction of the subject matter of this action is expressly given, and the court of appeals, in Doubleday v. Heath, (16 N. Y. Rep. 80,) has decided that this, equally with a suit for partition, is one of the “ special cases ” in regard to which it was competent for the legislature to confer equity powers upon the county court. It is immaterial, I concede, whether the proceeding had been initiated by petition or by summons and complaint in the form of an ordinary action. The objection on the trial was not to the form in which the remedy was sought, but to the remedy itself. This, as we have seen, is not tenable, and the objection was properly overruled.
It is insisted by the defendant’s counsel that the promise to convey to the plaintiff was entirely gratuitous, or if not, and any consideration can be spelled out of the transaction, it is grossly inadequate, and equity will not enforce, it.
The promise certainly was not gratuitous; and there is nothing in the case to show that the consideration was so grossly inadequate as to induce a court to refuse its aid to the plaintiff. It is true, as a general rule, that to entitle a party to ask interposition of the court, the contract must be supported by what a court of equity deems a meritorious consideration. (Will. Eq. 263.) As to the extent to which inadequacy of consideration will induce a court to refuse its aid, the cases are by no means in harmony, and it is difficult [642]*642to lay down any' definite or recognized rule. The nearest approximation to it is made by Chancellor Kent in the proposition that if the inadequacy of consideration be so great as to render the bargain hard or unconscionable, the court may refuse its aid to enforce the contract, and leave the parties to contest their rights at law. In this case, it must be remembered that the premises were worth not to exceed $75, and that the party agreeing to convey obtained an undertaking, by which the division fences between the land and his farm, which, as I understand the case, surrounded it on three sides, were to be perpetually maintained—an agreement which has been scrupulously fulfilled for mpre than twenty years. Upon the strength of this promise, the plaintiff has made valuable improvements upon the premises, and having done all, and more than he agreed to do, so far from the bargain being hard and unconscionable on his part, it would be an exceedingly hard rule that would pronounce the consideration grossly inadequate, and it would be quite unconscionable to deprive him of the land not only, but substantially of the fruit of all his labor and the enjoyment of all his improvements thereon.
It is urged with a good deal of earnestness that the lapse of time, and the gross laches of the plaintiff in making his application to the court is an unanswerable objection to giving him relief. This is by no means so formidable a difficulty as the counsel imagines it to be. .It is a familiar doctrine of the courts of equity that time is not, ordinarily, of the essence of a contract in regard to real estate. It may, under certain circumstances be made, or become so, but the general rule is that if a party has not been guilty of gross neglect; if his delay can be reasonably explained, and be consistent with good faith; and time has not been made material by the contract of the parties, a court of equity will afford relief. The explanation here is very simple, and is afforded by the very party who was to make the conveyance, and who, while constantly recognizing his obligations almost to the day of his [643]*643death, postponed their fulfillment out of consideration for the embarrassed condition of the plaintiff, which made that delay expedient if not necessary. It is always sufficient for a party to show that his laches has arisen from a reasonable cause, or has been acquiesced in by the other party. Here both these grounds of delay are shown very clearly to exist, and abundantly excuse the laches imputed to the plaintiff.
There is another ground on which the relief should be given in this case. It has long been settled that a parol contract for the conveyance of lands will, if partly executed by the party seeking relief be specifically enforced. If one of the contracting parties induces the other party so to act that if the contract be abandoned, he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete it, at law, is in the nature of a fraud. (Will. Eq. 283.) And therefore where the purchaser takes possession of the lands by virtue of the agreement, with the assent of the vendor, a court of equity will decree a specific performance; and especially if improvements on the premises be made at the expense of the party thus taking possession on the faith of the agreement. That is essentially this case, and it presents in these respects those features "which have uniformly appealed successfully to the equitable powers of this court for relief.
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By the Court, Bacon, J.
I am. by no means prepared to say that I should assent to all the conclusions stated by the county judge of Lewis in his findings of fact, in this case. But there is enough in the evidence, if credited, to warrant the judgment for specific performance. From the testimony it is made to appear that in the year 1837 the plaintiff, who was then a resident in Oswego county, was induced to remove to Turin, in Lewis county, upon the invitation of his brother George Williston, to reside with him; that after remaining together some time, the plaintiff working for the said George, the latter removed to another house he had erected on his farm, and the plaintiff remained in the original tenement, upon the agreement that he was to receive a deed of the lot, being about one acre, on condition that he should at his own exclusive cost and expense build and maintain all the division fences upon the premises, and be entitled to all the improvements he should make thereon. The value of these premises, at that time, did not exceed the sum of $75. In pursuance of this agreement, and in full reliance upon its performance, the plaintiff immediately began to make additions to, and improvements upon the premises, which he continued from time to time until he had expended thereon a sum exceeding $1000. He continued to maintain the division fences, paid all the taxes assessed upon the premises, for a series of years, and until after the death of George Willis-ton, and had exclusive and notorious possession, and the apparent ownership for all this period. The rights he claimed were never interfered with by George, but on the contrary he frequently acknowledged the existence of an agreement by which he was bound to convey the premises to the plaintiff down to a period not many months before his death, and averring that the only reason for not executing the conveyance [641]*641was certain pecuniary embarrassments of the plaintiff, which would make it imprudent to convey until that impediment was removed. These are the substantial facts of this case, and about which there is really no controversy; and they present a strong case for equitable relief, unless the claim has been forfeited by the unexplained and inexcusable laches of the plaintiff, or there has been some erroneous ruling on the trial.
It is objected, preliminarily, by the defendant, that the county court had no jurisdiction of the subject matter of the action, and could not decree specific performance. Itis enough to say that by the 7th subdivision of § 30 of the code, jurisdiction of the subject matter of this action is expressly given, and the court of appeals, in Doubleday v. Heath, (16 N. Y. Rep. 80,) has decided that this, equally with a suit for partition, is one of the “ special cases ” in regard to which it was competent for the legislature to confer equity powers upon the county court. It is immaterial, I concede, whether the proceeding had been initiated by petition or by summons and complaint in the form of an ordinary action. The objection on the trial was not to the form in which the remedy was sought, but to the remedy itself. This, as we have seen, is not tenable, and the objection was properly overruled.
It is insisted by the defendant’s counsel that the promise to convey to the plaintiff was entirely gratuitous, or if not, and any consideration can be spelled out of the transaction, it is grossly inadequate, and equity will not enforce, it.
The promise certainly was not gratuitous; and there is nothing in the case to show that the consideration was so grossly inadequate as to induce a court to refuse its aid to the plaintiff. It is true, as a general rule, that to entitle a party to ask interposition of the court, the contract must be supported by what a court of equity deems a meritorious consideration. (Will. Eq. 263.) As to the extent to which inadequacy of consideration will induce a court to refuse its aid, the cases are by no means in harmony, and it is difficult [642]*642to lay down any' definite or recognized rule. The nearest approximation to it is made by Chancellor Kent in the proposition that if the inadequacy of consideration be so great as to render the bargain hard or unconscionable, the court may refuse its aid to enforce the contract, and leave the parties to contest their rights at law. In this case, it must be remembered that the premises were worth not to exceed $75, and that the party agreeing to convey obtained an undertaking, by which the division fences between the land and his farm, which, as I understand the case, surrounded it on three sides, were to be perpetually maintained—an agreement which has been scrupulously fulfilled for mpre than twenty years. Upon the strength of this promise, the plaintiff has made valuable improvements upon the premises, and having done all, and more than he agreed to do, so far from the bargain being hard and unconscionable on his part, it would be an exceedingly hard rule that would pronounce the consideration grossly inadequate, and it would be quite unconscionable to deprive him of the land not only, but substantially of the fruit of all his labor and the enjoyment of all his improvements thereon.
It is urged with a good deal of earnestness that the lapse of time, and the gross laches of the plaintiff in making his application to the court is an unanswerable objection to giving him relief. This is by no means so formidable a difficulty as the counsel imagines it to be. .It is a familiar doctrine of the courts of equity that time is not, ordinarily, of the essence of a contract in regard to real estate. It may, under certain circumstances be made, or become so, but the general rule is that if a party has not been guilty of gross neglect; if his delay can be reasonably explained, and be consistent with good faith; and time has not been made material by the contract of the parties, a court of equity will afford relief. The explanation here is very simple, and is afforded by the very party who was to make the conveyance, and who, while constantly recognizing his obligations almost to the day of his [643]*643death, postponed their fulfillment out of consideration for the embarrassed condition of the plaintiff, which made that delay expedient if not necessary. It is always sufficient for a party to show that his laches has arisen from a reasonable cause, or has been acquiesced in by the other party. Here both these grounds of delay are shown very clearly to exist, and abundantly excuse the laches imputed to the plaintiff.
There is another ground on which the relief should be given in this case. It has long been settled that a parol contract for the conveyance of lands will, if partly executed by the party seeking relief be specifically enforced. If one of the contracting parties induces the other party so to act that if the contract be abandoned, he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete it, at law, is in the nature of a fraud. (Will. Eq. 283.) And therefore where the purchaser takes possession of the lands by virtue of the agreement, with the assent of the vendor, a court of equity will decree a specific performance; and especially if improvements on the premises be made at the expense of the party thus taking possession on the faith of the agreement. That is essentially this case, and it presents in these respects those features "which have uniformly appealed successfully to the equitable powers of this court for relief.
It remains to notice one or two exceptions that were taken to the admission of testimony on the trial, in respect to which it is claimed the court erred in its rulings. The plaintiff was inquired of as a witness in regard to the loss of a letter claimed to have been written by the deceased, George Williston, and gave such proof that its loss or destruction was presumed, and this is claimed to have been erroneous. The plaintiff was clearly competent to give evidence on this subject ; and whether he established enough to let in the secondary proof of its contents, so far as it was proposed to show the contents, was substantially a question of discretion for the judge on the trial. It was always competent, to [644]*644, prove the loss or destruction of a paper by the party, and there is no provision of the code that operates to the exclusion of the plaintiff from thus testifying. I think enough was shown to lead to the .conclusion that the letter was lost.
Conceding its loss, then was the plaintiff a competent witness to prove the contents of the letter ? The objection is that this is a “ transaction or communication had personally” with the deceased, and therefore by § 399 of the code, the plaintiff was incompetent to swear upon the subject. I think this is not the species of testimony the section intended to exclude. It was intended to provide for the case of personal intercourse, conversation or communications, and is not applicable to testimony resting in papers and documents of any description. Suppose the letter had not been lost, but had been produced upon the trial. There could not be a question as to its competency. The evidence of its contents, upon the assumption of its loss, is only another mode of producing the paper that it may speak for itself, in the same manner and with the same effect that it would have done had the letter itself been present. If it had been a lost note, contract or conveyance, its competency could not he questioned, and the moment the loss or destruction is proved, the further evidence only produces the paper in the only form in which it is possible to enable it to speak. The evidence the plaintiff gave upon the subject of the contents of the letter, it will be seen, was only slight, and even if erroneous, which I do not think it was, could not possibly injure the defendants, since all the material facts on which the plaintiff founded his claim for relief were supplied by other and competent proof, entirely outside of and independent of the letter, or of any thing testified to in relation to its contents. And in regard to the letter itself, it may further be said that the testimony of Clapp, which was entirely unobjectionable, established all that was necessary to be proved in regard to the fact that such a letter was written, and quite as much of [645]*645the contents as was made to appear by the testimony of the plaintiff.
[Onondaga General Term,
June 28, 1864.
I do not perceive that there is any thing in the other exceptions that requires discussion. Upon the whole case I think the county court arrived at a just conclusion; but the judge erred in allowing costs to the plaintiff. (See Swartwout v. Burr, 1 Barb. 495.) In this respect the judgment must be modified; and thus modified affirmed, without costs of the appeal to either party.
Morgan, Haem and Foster, Justices.]