2, 3. Laura Goff is a daughter and Lane Goff is a son-in-law of the deceased, and for that reason proof of possession under the alleged oral contract, although it may be sufficient when the contracting parties are strangers, is not enough of itself to avoid the statute of frauds as between relatives; but, if the plaintiffs show, as they claim here, that Lane Goff took possession of the premises with the intention of carrying out the oral agreement and, because of having entered into the agreement, made valuable permanent improvements, then a court of equity would be warranted in enforcing the contract: Barrett v. Schleich, 37 Or. 613 (62 Pac. 792); Pugh v. Spicknall, 43 Or. 489 (73 Pac. 1020, 74 Pac. 485); Zeuske v. Zeuske, 62 Or. 46 (124 Pac. 203); Thayer v. Thayer, 69 Or. 140 (138 Pac. 478); Stalker v. Stalker, ante, p. 291 (153 Pac. 52).

4. The court received evidence of declarations made by L. S. Kelsey against his interest in respect to the real property, and evidence of that character was clearly competent: Sections 710 and 727, subd. 4, L. O. L.; Stalker v. Stalker, ante, p. 291.

5, 6. There is a class of self-serving declarations which becomes competent as evidence when brought within the scope of Section 732, subdivision 2, L. O. L., where we read:

"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

tiffs contend that this character of evidence is incompetent because Grace Kelsey, as executrix, was not a proper party. Numerous witnesses testify that they had heard Kelsey declare that he had sold an undivided one-fourth interest to Lane Goff; and so, too, witnesses told of having heard Kelsey say that he had rented the land to Goff, and that the deceased had complained because Goff had not paid any rent. Nellie Hutchinson testified that her father told her that Goff had not purchased any land "and that he (Kelsey) was not going to rent it to him (Goff) any more because he had not farmed it right, and he was ruining the ground."

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. It 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

until it is foreclosed by a settlement of the estate or is otherwise terminated: Clark v. Bundy, 29 Or. 190 (44 Pac. 282). It is fair to assume that the plaintiffs believed that the executrix was either a necessary or a proper party, or it may be that they wished to invoke Section 1269, L. O. L., which provides:

"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).

7. Having stated the rules pertinent to the issues involved, we shall briefly consider the recitals appearing in the record. The entire tract of land was arid, and

for that reason was of but little value unless made irrigable. Kelsey commenced the construction of an irrigation ditch some time in 1910, and it was not completely finished until after his death, which occurred on May 15, 1913, although water was obtainable from and after 1911. In December, 1911, Charles E. Hutchinson orally agreed to purchase an undivided one-half interest in the land, and at that time paid his fatherin-law $3,000; and on October 5, 1912, the agreement was reduced to writing. In June, 1912, L. S. Kelsey verbally contracted to sell an undivided one fourth to his daughter, Nellie Hutchinson, who made a part payment of $250; but at some time in the fall of 1912 they rescinded the agreement. Goff farmed about 93 acres of the premises in 1911 and 1912, and during those two seasons the remainder of the land which was cultivated was cropped by renters. In 1911 Goff harvested 845 bushels of grain, and in 1912 he raised 600 sacks of oats and wheat. A man who was working for Goff lived on the 93 acres mentioned, while the plaintiffs at all times resided on a farm about three miles from the property in dispute. After the crops were removed in 1912 Goff quit the premises and then all the land was rented by Kelsey and Charles E. Hutchinson to Jensen and Newman, who cropped about 500 acres in the season of 1913.

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

agreement relied upon; and while he admits that he relinquished possession after the crop season of 1912, he nevertheless claims that the premises were leased to others for the year 1913, pursuant to an understanding with Kelsey that the latter might rent the property for the use and benefit of Goff, and that therefore the tenancy of Jensen and Newman redounded to the benefit of the plaintiffs. The Goffs also insist that the construction of the laterals on the land, work on the main ditch, and repairs to the house and barn furnished the necessary element of permanent improvements. The answering defendants deny that Kelsey ever agreed to sell to Goff, and assert that, even though there was an oral agreement to sell, the plaintiffs are remediless, because Goff occupied the land as a tenant, and not as a contracting purchaser. The evidence establishes the fact that Kelsey did make an agreement to sell to Goff, and that the terms were in the main as contended by the plaintiffs, although it is doubtful whether all the details, such as the payment of taxes, had been settled. Goff never paid any of the taxes because as he says, "I did not have the title," although the written contract with Charles E. Hutchinson specifically provides that the purchaser shall "pay and keep paid all of the taxes on the lands hereby sold during the continuance of this contract of sale."

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