JUDGES: Myrick, J. Thornton, J., and Sharpstein, J., concurred.
OPINION
MYRICK, Judge
By the Court (in bank, on petition for rehearing):
The application that this case be heard in bank is denied. A gift of real estate may be made by parole, if possession is given and taken under such gift, and acts done by the donee to carry out the purpose of the gift. (Freeman v. Freeman, 51 Barb. 306; 43 N.Y. 34.) The donees took possession in November, 1871, and erected the building for the purposes expressed in their agreement, and when the corporation was organized, it succeeded to the rights of the donees, thus making the possession for five years from November 9th, 1871, adverse to the defendant, and vesting title. The gift, though in form by Baker, was, in effect, the gift of G. B. Chester and J. Chester as well; it transferred an equitable title from Baker, Chester, and Chester, which would entitle the donees and their successors to have a decree giving them the legal title; or they could, by adverse possession, acquire such legal title.