(after stating the facts). The learned circuit judge who heard the case filed a written opinion. He did not determine whether the last contract, as claimed by the complainant, was made. He held that the foreclosure proceedings were with the assent of the complainant, who hoped thereby to protect his property, and to keep it, for himself and wife, beyond the reach of his creditors, and that, therefore, he had no right which he could enforce, either in law or equity, after the maturity of the title in defendant. He then disposed of the case upon the ground that, at the time the last agreement was claimed to have been made, both the parties were in possession; that, if there was any change of possession, it was a restriction of it, and not the giving of an additional possession; and held that it was ruled by a case in 47 Mich. The opinion does not state what case, and counsel for complainant assert that it was Murphy v. Stever, 47 Mich. 522. Counsel for defendant assert that the judge had in mind Peckham v. Balch, 49 Mich. 179. The opinion of the judge contains the following statement:

*594“In view of her marriage relation, and what she had done there, I think that the complainant could rightly insist that the wife could not say that she had all the money there was in this property, because, evidently, from the testimony in this case, what was advanced by Mr. Sigler, the nephew, to Mr. Sigler, the complainant in this case, was a matter between himself and the nephew, and it would, in the law, be the same as though he had paid his own money for it. But the surrender of rights here was when he permitted the wife to take this mortgage, and take the foreclosure deed in her own name. That was the time when he lost right, and he has not, I think, made such a subsequent contract as would enable him to retain this real estate.”

We do not regard it as important to determine under what arrangement the foreclosure proceedings took place. The parties continued to live there for some years after-wards. If any affection ever existed between them, which is very doubtful, they had evidently become thoroughly estranged from each other. She had determined to leave him, and did leave him. Both were in possession. He was aware that she intended to leave him. It was, therefore, entirely natural that some arrangement should be made to determine their rights in the future. If any arrangement was made, it is important to first determine what it was. He positively asserts the agreement as set forth in his bill of complaint. She positively denies it. Had the circuit judge determined the question, we might very properly say that his determination should stand, since he was in better position to determine which told the truth. We must, however, determine the question without the benefit of the conclusion of the circuit judge. The situation of the parties is important. Complainant was old and feeble. He had lived in this homestead for 37 years. He had no other property, and no children. Defendant had invested but $800 in it. It is not reasonable to suppose that he would give her other property, to which she was not entitled, and abandon to her his homestead besides. She left him in the undis*595turbed possession for two years. One witness, a Mr. Doolittle, testified that he applied to her to rent the place, and that she then said that complainant “had part of it as his home there,” and that he refused to take it for that reason. She at one time offered him $500 to leave the premises. We think the contract is established by a fair preponderance of the evidence.

We think, also, that there was stich a part performance as takes the contract out of the statute of frauds, although it rested in parol. She had taken the personal property under the contract. He had taken possession of the rooms, grapery, and barn, and abandoned possession of the other part of the house. So far as the consideration to be paid by him was concerned, it was fully executed. It was also executed on her part, by leaving him in possession and taking possession of the other part, controlling and renting it. We do not think the case of Peckham v. Balch applies. It is rather controlled by Murphy v. Stever. Many authorities are cited by both parties, but we deem it unnecessary to refer to them. The rule is well established that part performance of a parol contract for an interest in lands is valid, and not within the statute of frauds, and that a court of equity will decree specific performance. An action at law for damages will not afford an adequate compensation. Complainant contracted for the possession of a part of his homestead as a place of shelter for the remainder of his life. He was entitled to the specific thing for which he had contracted and paid, and of which he was in possession.

It was not necessary to tender to defendant the money she had invested. This is not a suit to set aside her title. It is conceded that she has the title, subject to a life estate in a part of the premises.

The decree must be reversed, with the costs of both courts, and decree entered in this court for the complainant.