Norton, J.
This is a suit in ejectment to recover possession of forty acres of land in the petition described. The-answer of defendant, among other things, sets up that plaintiff is his grandfather and controlled and received the benefits of defendant’s labor till he was twenty-three years old. That plaintiff became the owner of the land in 1867 and in 1868 gave it to defendant, but did not execute a deed therefor; that in the year aforesaid plaintiff told defendant-that he had bought the land for him and requested defendant to take possession of it, clear the timber from it, fence and put it in cultivation and improve it as his own property, and to use it as such, and that if defendant would do as above stated the land should be his after a certain time, or when defendant’s diligence and thrift were demonstrated by such said improvement of the land; that pursuant to such request and agreement defendant in 1868-entered upon said land, began and has ever since deadened trees, cleared the land, broke it up, put it in cultivation, in good farmer-like manner, built a dwelling, .stable and other buildings thereon, with stock pens, dug a well for water and set out fruit trees, in the doing of which defendant-devoted his whole time, skill and labor; and that he expended said time and labor in improving the farm believing it to be his own, and relied in good faith, in so doing, upon the said promise of plaintiff. For a further defense- the statute of limitations was pleaded. The answer* concludes with a prayer that the court decree title to defendant for said land, or that if plaintiff be allowed to recover on the legal title that a judgment for $2,000 be given defendant for improvements made, and that the judgment be declared a lien on the land. The replication puts in issue the matters set up in the answer.
On. a trial had before the court, without the intervention of a j ury, the court rendered a decree vesting title in the defendant, from which the plaintiff prosecutes an appeal to this court. The following facts we think are established by the evidence: That defendant was the grandson of plaintiffand that he rendered service for plaintiff till he was about twenty-three years old; that plaintiff bought the land in controversy in 1867 and in 1868 agreed with defendant that he would make him a deed to the land if he would go on it, improve it, and make a living on it; that he put defendant in possession of the land which at the time was unimproved; that defendant, on the faith of said promises, took possession of the land as owmer, cleared a greater portion of it of the timber, put it in cultivation, built a dwelling, fenced the ground, dug a well and made other improvements; that defendant occupied said land under said agreement for about ten or eleven years before suit brought, two years of the time by a tenant to whom he had leased the land as his, with the knowledge and assent of plaintiff. The court found these facts and based its decree upon them, and it is objected by plaintiff and appellant that they are not sufficient in law to warrant the decree. It is insisted by counsel that the contract relied upon is within the statute of frauds, and is without consideration, and that, therefore, the decree is erroneous. The answer to this is that the evidence shows, and the court below so found, that defendant in pursuance of and on the faith of said contract and offer of plaintiff entered into possession of it as owner, improved the same as set forth in the petition, thus bringing the case within the principle of the case of Despain v. Carter, 21 Mo. 331, where it is said that “ whenever a party has been let into possession, and has made valuable improvements, expended money in building or repairs, these acts have been long and I may say uniformly considered, as taking the case out of the statute. If this were not so the party would be made the victim of a fraud practiced on him.” See also, Gupton v. Gupton, 47 Mo. 37; Hiatt v. Williams, 72 Mo. 214; Sutton v. Hayden, 62 Mo. 101; Freeman v. Freeman, 43 N. Y. 34; Neal v. Neales, 9 Wall. 1; Hardesty v. Richardson, 44 Mo. 617; 23 How. 347; 13 Vesey 147; Bright v. Bright, 41 Ill. 97; Langston v. Bates, 84 Ill. 524.
During the progress of the trial, a witness was allowed to testify, over plaintiff’s objection, as to the number of plaintiff’s children and the amount of his property. Conceding that the evidence so received was irrelevant, as the trial was by the court, the presumption can be indulged that the court gave no importance to it when it appears, as it does in this case, that without regard to such evidence the judgment is for the right party; and it further appearing that the granting of a new trial for this error could not affect the final result we would not be justified in reversing the judgment, as it is fully supported by the other evidence in the case. Hedecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 51 Mo. 55; Hodges v. Black, 76 Mo. 537.
Judgment affirmed
in which all concur, except Judges Hough and Henry, absent.