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WILLIAM GOULD & SON,

LAW BOOKSELLERS AND PUBLISHERS.

1867.

Entered according to act of Congress, in the year eighteen hundred and sixty-seven, BY WILLIAM GOULD & SON,

In the Clerk's Office of the District Court of the Northern District of New York.

Rec July 10
July 10.1867

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PRACTICE REPORTS.

SUPREME COURT.

FRANK LOBDELL and others, infants by FRANCIS BICKERSTAFF, their guardian, respondents agt. AMMON LOBDELL and others, appellants.

In an action for the specific performance of an agreement to convey land, the rule is not as strict now as formerly, in reference to the proof of the exact agreement alleged in the complaint.

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If the allegations of the cause of action are not unproved in their entire scope and meaning; and the variance is not material and no one has been misled; and especially if no question of variance was raised at the trial, the objection taken on appeal that the agreement as set forth in the complaint is widely dif ferent from that found by the referee, will be disregarded.

In an action by heirs at law of an intestate son, claiming a specific performance of an oral agreement for the conveyance of land, against the devisees of the father, one of the defendants, a devisee, cannot be a witness on his own behalf to prove a conversation between the father and son, and in which the witness took part, respecting the agreement by the father to give the son a deed of the property, on the performance of certain conditions.

And 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 (the son) to defeat their title as the heirs at law, and to establish his own title, he being a defendant. If the case does not come literally within the words of the statute (Code, § 399), "any transaction or communication had personally by such party with the deceased" father of the plaintiffs, it is within the intention of the statute. It is 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 plaintiff must make a meritorious case.

Held, in this case that assuming the facts as found by the referee, the case of the plaintiffs was meritorious, and they were entitled to the relief demanded: although there was much doubt whether the agreement as found by the referee was ever made. The case however was not destitute of equity. The evidence showed an intention on the part of the father to give the land to his son, when he (the father) should die; and some of the evidence tended strongly to show that he had already given him the land.

Argued at Erie General Term May, 1866.

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