delivered the opinion of the court.
The pivotal points of difference between the contesting parties to this litigation are: (1) Whether L. S. Kelsey agreed to sell to Lane Goff; and (2) whether Goff’s occupancy of a part of the land and the work done by him on the premises and on the ditch were sufficient to authorize the enforcement of an oral agreement. If L. S. Kelsey did not agree to sell to Goff, then it will not be necessary to discuss any other question; but, even if an agreement was made, it will not avail plaintiffs, unless the bar raised by the statute of frauds has been removed by the acts of Goff in using and working on the premises.
“That when a party to an action, suit, or proceeding by or against an executor or administrator appears as a witness in his own behalf, or offers evidence of statements made by deceased against the interest of the deceased, statements of the deceased concerning the same subject matter in his own favor may also be proven. ’ ’
The defendants introduced evidence showing that the deceased also made statements in his own favor concerning his disposition of the land; and the plain
At the trial the plaintiffs did not even suggest the objection they now make. The evidence was admissible, however. Grace Kelsey, in her representative capacity as executrix of the estate, is a party defendant and was made such by the plaintiffs themselves when they filed their initial pleading; and, moreover, there is nothing to indicate that she is not a proper party. The executrix is entitled to the possession of the property and to receive' the rents and profits until the administration is completed or the property is surrendered to the heirs or devisees: Section 1185, L. O. L. The complaint alleges that Grace Kelsey as executrix “is now administering said estate under the terms of said last will and testament,” and consequently the right of the executrix to take possession has not been terminated by the completion of the administration of the estate: Section 1304, L. O. L. The record does not contain any suggestion that the land has been released from any claim of the executrix or surrendered to the heirs and devisees pursuant to Section 1305, L. O. L. 11; is true that the condition of the estate may be such as not to require the executrix to take possession of the real property, but the right of possession continues
“If any deceased person was at the time of his death a party to a bond for a deed or other enforceable contract requiring said deceased to convey real estate, the interest and title of said deceased may be conveyed by his executor or administrator, upon full compliance with the terms and conditions of such bond or contract by the other party thereto, and a deed so made shall transfer the same title as though made by such deceased if living.”
The plaintiffs are the parties who impleaded the executrix; and, furthermore, a situation is presented where the legal representative of the estate has either taken possession of the land in controversy, or, if she had not already done so, the executrix may yet attempt to enter into possession of the real estate, and therefore Grace Kelsey in her representative capacity is a proper party defendant. Since this is a suit against an executrix within the meaning of the statute and the plaintiffs not only appeared as witnesses in their own behalf, but also offered evidence of statements made by L. S. Kelsey against the interest of deceased and his successors, it follows that “statements of the deceased concerning the same subject matter in his own favor may be proven”: Section 732, subd. 2, L. O. L.; Jones v. Hill, 62 Or. 53 (124 Pac. 206); Beard v. Beard, 66 Or. 526 (133 Pac. 795).
The plaintiffs claim that Kelsey orally agreed to sell to Lane Goff an undivided one fourth of the 1,160 acres, to be divided when the “ditch was dug,” for $16 per acre, payable at any time within 10 years, with the further understanding that any work done by Goff on the ditch would be credited on the purchase price of the land. Lane Goff contends that he took possession of the 93 acres and farmed that much land in 1911 and 1912, with the intention of carrying out the oral
The repairs to the house and barn were comparatively trifling, and only such as were necessary to make the buildings habitable. It is true that Goff performed work on the main ditch, and that he claims that this work was done because of his contract to buy, while the adverse parties contend that Goff was working for Kelsey the same as other employees.
The recitals are so widely divergent and the evidence so largely consists of positive affirmations in
“The next fall after harvest I went to Mr. Kelsey and asked him if he wanted me to return that wheat or pay him for it. He says, ‘Never mind about the wheat. We have failed on the crop; we haven’t made anything, and I don’t want you to pay anything until we make something.’ ”
The decree of the Circuit Court is affirmed.
Affirmed.