The opinion of the Court was pronounced by
Collamer, J.— It is insisted for the plaintiff, that she ought to recover, because the auditor does not report, directly, that the defendant ever agreed to the arrangement made by Benjamin Shaw with his brothers. An auditor’s report does not resemble a special verdict in every respect and in all its consequences. On a special verdict, the court must render judgment; but on an auditor’s report, it may be recommitted to supply defects. The auditor must report facts, not the evidence of those facts;, but the court may make all the presumptions which necessarily follow from the facts reported, without putting the parties to the expense and trouble of going again to the auditor for him to report those presumptions; arid therefore, where the facts reported by an auditor make a satisfactory prima fa-cie case, the court will render judgment. In this case, the auditor reports that after the contract was made between Benjamin and his brothers, the defendant submitted to it by residing with him, permitting him to use the land without rent or account, and actually deeding a part, where he directed, and he took the pay. After all this, it must be extremely sceptical to say the defendant was not consenting to that arrangement. The same may be said in relation to defendant’s consenting to the plaintiff’s going on with her husband’s contract.
It is next insisted, that the plaintiff is entitled to recover, because the defendant is unable to convey the land in fee; as it was a fee simple estate the plaintiff’s husband was to have. It is, however, most obvious that Benjamin *75was not to have the fee from the defendant, nor did she ever so agree. All her part of the agreement was the use during her life, which it does not appear she was either" unable or unwilling to grant. For the remainder, Benjamin relied on his brothers’ contract; and to them he, and the plaintiff claiming under him, should look.
It is urged for the plaintiff, that this was a contract for the sale of land, or an interest therein, and void under the statute, not binding on the defendant, and therefore, for want of reciprocity, not binding on the plaintiff; and it is therefore concluded the plaintiff is entitled to recover for the support rendered.
The statute does not declare such parol contracts void. It only provides that no action*shall be maintained thereon, and in this case the action is not on the contract — it is the defence which is thereon. The statute applies only to executory contracts, not to those in whole or in material _ part executed. Therefore, when one partyhas partly per-^ formed under such a contract, he cannot recover for what he has done, unless the other party insist upon the statute, and refuse to perform. This is too obviously just to require comment, and to disregard i.t would do violence to every leading principle. The contract cannot be considered void so long as he, for the protection of whose rights the statute is made, is willing to treat and consider the,, contract good. Such is the case in Dowdle vs. Camp, (12 John. Rep. 451.) In the case of Gibson vs. Seymour, (3 Vt. Rep.) the deed to the plaintiff was from the defendant’s debtor, and without any consideration but a parol promise from the plaintiff to re-deed on being paid or indemnified. It was insisted that such deed was fraudulent and void as against creditors; and such must inevitably have been the case, if such parol contract was void; for the deed would have been wholly without consideration. The court however refused so to decide, but merely held that so long as the plaintiff was. willing to abide by the contract, the deed was not void for want of consideration, but,merely prima jade fraudulent on account of not being a mortgage. The same principle was recognized by the court more fully, in the case of Williams vs. Parish & Orcutt, in Orange county, not yet reported. It is therefore unnecessary to in* *76quire whether law or chancery would have treated it as void, had the defendant been called on, upon the contract, after part performance. It is sufficient to say, the plaintiff cannot repudiate the contract and recover back what she has paid thereon, .the defendant having never refused to complete the same.
Judgment affirmed.