(dissenting.) The plaintiff is the widow, executrix, and sole legatee of John A. Dunekel, who died February 9, 1883, and who was the son of defendant. Since 1866 the defendant has been the owner in fee of the premises in question, but they were occupied by John A. Dunekel from that time until his death. At the time of his death, John A. Dunekel was largely indebted. The total indebtedness turned out to be over $11,000, on about $7,500 of which the defendant was liable as surety, in some form. The defendant was apprehensive that he might have to pay these debts, or a part of them. Soon after the death of John A., and on or about February 12, 1883, and before the probate of the will, the defendant promised the plaintiff that if she would pay these debts, on which he was liable, and would save him from paying the same, he would give her a life-lease of the premises. The plaintiff did pay all these debts,—most of them in February and March, 1883, and the remaining debt when payable, January 26,1884,—and delivered the notes on which he was liable to defendant, and requested the life-lease. From and after the death of said John A., the plaintiff continued to occupy, and still occupies, said premises. It does not appear that John A. had any lease of the premises. The jury found the verbal contract as above stated, and the payment of the debts by plaintiff, relying thereon; and these findings are approved and adopted by the court.
It is evident that, at the time when the agreement so found by the jury was made, it was not known exactly to how much the property of the deceased would amount. He had carried on a store, and it was arranged among the *892parties interested that the stock should be sold at 75 cents on the dollar, since some purchasers were ready to buy. There was received by plaintiff from the assets about $10,600. Her commissions were about $300. There are some other items, amounting to about $200. It is stated that plaintiff received some rent of the store for three years after her husband’s death. The respondent claims that there is a mistake as to the amount of such rent, but that is of little consequence. Practically, the assets were very near the amount of the debts. The defendant insists that there was no consideration fortheeontract, because she paid the debts out of the assets, as was her duty. But the question is, what did she agree to do? If she only agreed to apply the assets to the debts, then it is true there was no consideration. If, however, she bound herself personally to pay them, then she assumed a liability which she would have to perform whether the assets should prove to be sufficient or not; and, as the matter was then uncertain, no inventory having been taken, and she was not then executrix, she took a risk upon herself personally. The defendant was under a contingent liability. He wished to be relieved from this, quickly and surely. It was not then certain that she would act as executrix. Therefore he induced the plaintiff to agree to pay the debts, including those on which he was liable, in consideration that he would give her a life-lease of the property. There is evidence that defendant thought there was not enough to pay the debts. The plaintiff had been a dress-maker for some five years before her husband’s death; and, according to her testimony, she told defendant she would pay every debt, “if I could draw my needle long enough to do so.” Hence it appears that the agreement found by the jury vras her personal obligation, and not a mere agreement to apply the assets faithfully. In Maddison v. Alderson, L. R. 8 App. Cas. 474, it is said that the statute of frauds does not avoid the contract, but only bars remedies. If we look at 2 Bev. St. marg. p. 135, § 10, which preserves the power to compel specific performance, we shall see that the samé must be said of our statute; for that section recognizes the validity of the contracts in so far as it authorizes the court to compel performance. The question then remains, viz., is the present a case in which the court should grant specific performance?
First. The plaintiff has fully performed her part of the agreement. When the agreement was made, neither party could have-understood that the plaintiff was to pay the debts exclusively out of her own property, other than that of the estate. Both knew that she could apply, and ought to apply, to them the assets of the estate. But she herself owned the assets, subject to the debts; and she agreed, as the jury have found, that at all events she would pay the debts, and thus save the defendant from loss. This was not a promise to pay the debt of another. Leonard v. Vredenburgh, 8 Johns. 28. And the defendant, in consideration of that agreement, promised her the life-lease. What was the use of making any agreement, if its meaning was only that she was to apply the assets to the debts? Evidently, more than this was meant. She has fulfilled her part of the agreement. Possibly, in selling the stock at once, and in a hurry, she may have, as sole legatee, suffered some loss; and, evidently, at that time the defendant was uneasy, and anxious rather to remove his own liability than to have the estate managed to the best advantage for her. She yielded to his wishes, sold off the property at once, and closed up the estate before the statute required. Cannot a surety make an agreement with some third party to save him harmless from liability as surety? Is not such an agreement valid, even though, in the end, the principal debtor shall pay the debt? That was the agreement which the defendant made with the plaintiff. It is very possible that the best authorities hold that the mere payment of even the full consideration does not of itself justify the court in granting specific performance of a paroi agreement. There must be some additional element, as some authorities hold; and that element exists here, for—Second. The plaintiff is in possession. How, it is true that if the purchaser under a *893paroi agreement gets possession by trespass, or against the will of the owner, such possession avails him nothing. So, too, if he had been in possession before the contract, under some other title, then the possession is not referable to the contract. But neither of those circumstances exists here. The plaintiff is not in by trespass, or against the consent of the owner. She has remained in undisturbed possession since her husband’s death, in February, 1883; and not till February, 1886, after she had paid all the defendant’s liabilities, did he give her a notice to quit. There is no evidence that the defendant could not have compelled immediate possession after the husband’s death. The jury have found that John A. had no contract for the property. Probably, then, he was a mere strict common-law tenant at will, (4 Kent, Comm. 114,) and the personal representative of the deceased lessee would seem to have no-right to possession, (1 Washb. Real Prop. 373.) John A. paid no rent, but was living in the house by the consent of the defendant. Therefore, the plaintiff had no other right to the possession, except such as she acquired under defendant’s agreement. Furthermore, it will be seen that she was not a devisee under the will. Now it is true, as defendant argues, that the possession of the premises which will justify a decree of specific performance in the case of a verbal agreement must be a possession referable to the contract. But it is well said in Morrill v. Cooper, 65 Barb. 520, that, where acquiescence in the possession has been for a considerable time, that circumstance must 6e taken into consideration. In that case the plaintiff had been allowed to remain in possession II months. Here she had been in possession three years, and this circumstance is a strong indication that her possession was under the paroi agreement. Under what else could it have been ? What has been her position since her husband’s death? She has not been paying rent, but has, so far as appears, held the property absolutely as her own, claiming to own it, and refusing the defendant possession even of a part of the house. We have also the further fact, found by the learned justice, that in February, 1886, the defendant asked of plaintiff that she would permit him and his wife to move into part of the dwelling, and that she refused this, but offered to-surrender the premises, if he would pay her what the deceased had expended for.improvement; and, again, that soon afterwards defendant offered plaintiff $500 if she would move out, which she declined. It was then that defendant gave the notice to quit. These two circumstances enforce the view that the plaintiff was in possession under no other authority than that of the verbal agreement, for the defendant then admitted her right, and requested a favor.
It does not seem necessary to cite authorities to the point that where there is a paroi agreement for the conveyance of land, and the purchaser has paid the full consideration, and has taken possession under the paroi agreement, equity will decree a specific performance. We need only refer to 3 Pom. Eq. Jur. § 1409, and to the cases cited in the note, where it is shown that open possession or permanent improvements, or the two combined, constitute sufficient paroi performance; and one reason why possession is sufficient is that it would be unjust to permit the legal owner to oust by ejectment the person who, under the agreement, is rightfully in possession. Kenyon v. Youlan, 6 N. Y. Supp. 784; Coles v. Pilkington, L. R. 19 Eq. 174. The real question in the present case must be whether there was a valid consideration, fully performed, and whether the possession was referable to the paroi agreement. I think the court rightfully decided these in the affirmative.
The defendant also urges that costs should not have been allowed. The complaint contained a claim that, by an agreement between defendant and John A., defendant was to convey the premises to John A. The jury found in the negative, and the defendant therefore insists that neither side should have costs. It does not seem to us that this would be just. The two causes of action, if we choose to call them such, related to the same piece of property. It does not appear that the trial of the action was made more laborious by the *894addition of the claim just mentioned. The same witnesses, generally, testified. This case is quite unlike that of Law v. McDonald, 9 Hun, 23. I think that the allowance of costs was in the discretion of the court, and was proper. Judgment should be affirmed, with costs.