Ogden, J.
This cause was before this court in 1867, on an appeal by the plaintiff below. The judgment was reversed and the cause remanded. A new trial-was had, and a judgment rendered for the plaintiff; and now the defendant has appealed. In the decision of the cause on the former appeal the court reviewed at some length, and with much well founded criticism, the -case of Boze v. Davis, in 14 Texas, 341. And it may not be improbable that the review of that case, and the strong intimation of what might be the ruling of the court in this cause, has induced a judgment in the -district court which is not supported by authority, and which the learned judge who delivered the opinion on the former appeal would not have approved. That a “ mere voluntary defective conveyance,” or donation of real estate, will not. be enforced, either in a court of law or equity, is too well settled to be now called in question; and Justice Story says, “This doctrine applies equally, whether a party seeks to have the benefit of a contract, a covenant, or a settlement, however mérito[244] rious may be the consideration, and. although the parties may stand in the relation of wife or child.” (Story’s Eq., 986.)
We have been unable to find any adjudicated case, where a mere voluntary parol promise to convey real estate has been specifically enforced by the courts ; but-in all cases where a defective conveyance has been enforced in favor of a volunteer, there was necessarily a valuable consideration to support the contract. What that consideration shonld be, in order to support a-promise to convey, is not so clearly settled by the decisions ; but that such a promise, or contract, does not necessarily require a pecuniary, or full and adequate consideration to support it, is most definitely settled. So that the party promising is to receive some benefit,, or the party to whom the promise is made is to sustain some detriment, in either or both cases, the contract has a valuable consideration to support it. Tried by this rule we have no hesitancy in coming to the conclusion that the parol contract, or 'promise, set out in the-case of Boze v. Davis, was founded on a valuable, if not a sufficient consideration. Davis showed most clearly that he expected a benefit to himself and family, in having his father-in-law near him, which he was wilting to pay for, while Boze must have sustained a great pecuniary detriment, or loss, in order to accept the offer of Davis; and we can see no good reason for-deciding that there had not an abundant consideration-passed, to authorize a specific enforcement of the verbal contract. In the cause referred to, there was a definite proposition by Davis to convey certain land, provided Boze, as a consideration, shonld do certain things-as a condition precedent. Boze fully complied with and performed the condition, and was put in possession of the land by Davis, and equity would have enforced a specific performance as against him.
[245] We have carefully examined the cases referred to, and can find none, excepting Boze v. Davis, which holds to a different doctrine. In the case of Kirksey v. Kirksey, 8 Ala., 133, there was no specific or definite promise on the part of the defendant, other than contained in his letter to Ms sister, in wMch he says, “I will let you have a place to raise your family,” without specifying any title, or term of lease, and the court decided the promise a mere gratuity that could not be enforced. In the case of King v. Thompson, 9 Peters, 204, the court says, “there was not only a good but a valuable consideration,” on which account the grant would have been enforced but for the uncertainty of the contract. The grant in that case was to be made on condition that the grantee should make certain repairs, so as to make the premises to be granted a comfortable residence for the daughter of the grantor. And in the case of Shepherd v. Bevin, (9 Gill, 35), the consideration, or rather a part of the consideration, was the receipt of five hundred and sixty-one dollars, and the purchaser went into possession of the property and made valuable improvements on the faith of the purchase. This was held sufficient to authorize the specific enforcement of the contract. But the case of Neal v. Neal (9 Wallace, 8), is relied on by counsel as settling the question as to the validity of a parol gift of land, in which the court says, “Equity protects a parol gift of land, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property.”
The language here quoted is direct and unambiguous, and we might feel bound to acquiesce in the decision, had the simple question of a parol gift been presented to the court for its decision. But it is believed that the [246] records in that case presented another and quite different question for determination. The learned judge who delivered the opinion very concisely sums up the facts of that case by saying, that from “the whole evidence it is reasonably certain that John E. Heal agreed to give to Mary Hamilton, who was about to marry his son, in furtherance of the marriage, the lot in controversy, for the benefit of herself and children, and for a home for the family, if with her means a suitable dwelling house was erected on it, and that this has been done.”
This statement of the facts shows most clearly that the question of gift was not presented by the record, but rather the question of a parol contract to convey land for a valuable consideration, viz., the consideration of marriage and expenditure of money, and upon this latter question the cause was decided. And we can discern no difference in the principle decided in this case from that in King v. Thompson, or Shepherd v. Bevin; and we are disinclined to adopt the mere dictum of the learned judge as a rule of decision until we are enabled to discover the reason or authority for the same.
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Ogden, J.
This cause was before this court in 1867, on an appeal by the plaintiff below. The judgment was reversed and the cause remanded. A new trial-was had, and a judgment rendered for the plaintiff; and now the defendant has appealed. In the decision of the cause on the former appeal the court reviewed at some length, and with much well founded criticism, the -case of Boze v. Davis, in 14 Texas, 341. And it may not be improbable that the review of that case, and the strong intimation of what might be the ruling of the court in this cause, has induced a judgment in the -district court which is not supported by authority, and which the learned judge who delivered the opinion on the former appeal would not have approved. That a “ mere voluntary defective conveyance,” or donation of real estate, will not. be enforced, either in a court of law or equity, is too well settled to be now called in question; and Justice Story says, “This doctrine applies equally, whether a party seeks to have the benefit of a contract, a covenant, or a settlement, however mérito[244] rious may be the consideration, and. although the parties may stand in the relation of wife or child.” (Story’s Eq., 986.)
We have been unable to find any adjudicated case, where a mere voluntary parol promise to convey real estate has been specifically enforced by the courts ; but-in all cases where a defective conveyance has been enforced in favor of a volunteer, there was necessarily a valuable consideration to support the contract. What that consideration shonld be, in order to support a-promise to convey, is not so clearly settled by the decisions ; but that such a promise, or contract, does not necessarily require a pecuniary, or full and adequate consideration to support it, is most definitely settled. So that the party promising is to receive some benefit,, or the party to whom the promise is made is to sustain some detriment, in either or both cases, the contract has a valuable consideration to support it. Tried by this rule we have no hesitancy in coming to the conclusion that the parol contract, or 'promise, set out in the-case of Boze v. Davis, was founded on a valuable, if not a sufficient consideration. Davis showed most clearly that he expected a benefit to himself and family, in having his father-in-law near him, which he was wilting to pay for, while Boze must have sustained a great pecuniary detriment, or loss, in order to accept the offer of Davis; and we can see no good reason for-deciding that there had not an abundant consideration-passed, to authorize a specific enforcement of the verbal contract. In the cause referred to, there was a definite proposition by Davis to convey certain land, provided Boze, as a consideration, shonld do certain things-as a condition precedent. Boze fully complied with and performed the condition, and was put in possession of the land by Davis, and equity would have enforced a specific performance as against him.
[245] We have carefully examined the cases referred to, and can find none, excepting Boze v. Davis, which holds to a different doctrine. In the case of Kirksey v. Kirksey, 8 Ala., 133, there was no specific or definite promise on the part of the defendant, other than contained in his letter to Ms sister, in wMch he says, “I will let you have a place to raise your family,” without specifying any title, or term of lease, and the court decided the promise a mere gratuity that could not be enforced. In the case of King v. Thompson, 9 Peters, 204, the court says, “there was not only a good but a valuable consideration,” on which account the grant would have been enforced but for the uncertainty of the contract. The grant in that case was to be made on condition that the grantee should make certain repairs, so as to make the premises to be granted a comfortable residence for the daughter of the grantor. And in the case of Shepherd v. Bevin, (9 Gill, 35), the consideration, or rather a part of the consideration, was the receipt of five hundred and sixty-one dollars, and the purchaser went into possession of the property and made valuable improvements on the faith of the purchase. This was held sufficient to authorize the specific enforcement of the contract. But the case of Neal v. Neal (9 Wallace, 8), is relied on by counsel as settling the question as to the validity of a parol gift of land, in which the court says, “Equity protects a parol gift of land, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property.”
The language here quoted is direct and unambiguous, and we might feel bound to acquiesce in the decision, had the simple question of a parol gift been presented to the court for its decision. But it is believed that the [246] records in that case presented another and quite different question for determination. The learned judge who delivered the opinion very concisely sums up the facts of that case by saying, that from “the whole evidence it is reasonably certain that John E. Heal agreed to give to Mary Hamilton, who was about to marry his son, in furtherance of the marriage, the lot in controversy, for the benefit of herself and children, and for a home for the family, if with her means a suitable dwelling house was erected on it, and that this has been done.”
This statement of the facts shows most clearly that the question of gift was not presented by the record, but rather the question of a parol contract to convey land for a valuable consideration, viz., the consideration of marriage and expenditure of money, and upon this latter question the cause was decided. And we can discern no difference in the principle decided in this case from that in King v. Thompson, or Shepherd v. Bevin; and we are disinclined to adopt the mere dictum of the learned judge as a rule of decision until we are enabled to discover the reason or authority for the same.
The facts of the cause before this court are believed to be materially different from those in the cases referred to. It was in proof on the trial that Balaam H. Brewer said in 1846 that he wanted to purchase the lot in question for his boys, and afterwards he was heard to say, on several different occasions, in 1847 and 1848, that he had given the lot to Francis W. Brewer; that Francis W. Brewer went into possession of the premises in the spring of 1847, put improvements on the same, and occupied it for several years. But Balaam H. Brewer died without making any conveyance for the land, or in any manner recognizing the gift by any in[247] strument of writing. There is no pretense that Francis. W. Brewer paid any consideration for the land, nor that Balaam H. Brewer received any benefit for the conveyance, or promise to convey; nor was there any condition demanded by Balaam H. Brewer of his son Francis W., to induce him to make the conveyance. It was therefore evidently intended to be simply a voluntary donation, or gift, without consideration or condition; and as the same is not evidenced by any written instrument, it must be considered such a defective conveyance as cannot be enforced by law nor helped in equity in favor of a volunteer, or one claiming under him. We do not consider the fact that Francis W. Brewer put valuable improvements on the land, without the request or even consent of the father, as in' any manner effecting an equity in him, which the courts will enforce. The improvements were put there voluntarily, for his own benefit, and with a fuE knowledge of his rights in the premises; and if he now has any interest in the improvements, that interest must be an uncertain one, which may, however, be determined by a decree of a court, and is therefore not subject to sale under execution.
We are, therefore, of the opinion that Francis W. Brewer, by reason of the gift from his father, received no such title, or interest, in the land in question as he could have enforced through the aid of the courts, or which could have been sold under execution. But at the time of sheriff’s sale to the appellee under the execution, Francis W. Brewer may have had an interest in the land sold, as one of the heirs of Balaam H. Brewer, and which interest (if any) was unquestionably conveyed at the sheriff’s sale to the appeUee, and he is-entitled to recover in this suit whatever interest that may be.
[248] The plaintiff’s original and amended petitions fail to allege, specifically, ten years possession by Francis W. Brewer; and if he has failed to set up that fact by distinct and proper averments, he certainly was not entitled to the benefit of any proof to establish it (Lucketts v. Townsend, 3 Texas, 128); besides, had the- allegations of the petition been full and specific, in setting out the ten years’ possession, we are not satisfied that the evidence on the trial, or the charge of the court, authorized the finding of the jury in that particular.
It was proven on the trial that Snediker, during his lifetime, claimed the premises in controversy by reason of a parol contract of sale from C. C. Brewer, and that Snediker remained in possession until his death, and that the property went into the hands of the administrator on Snediker’s estate, and was rented out by him. We are not prepared to say what weight this testimony should have had with the jury in determining the time F. W. Brewer was in possession, as no direct issue in regard to that fact was presented to them by the charge of the court. We fail to discover any good and sufficient reason for ruling out the testimony of B. L. West. C. C. Brewer and F. W. Brewer were permitted by the court to interplead as the landlords of Snediker and Cole, and the deposition of West was offered to prove the fact that the gift, if made at all, was made to both the sons, and under the pleadings we think it was admissible for that purpose.
The judgment is therefore reversed, and the cause jemanded.
Reversed and remanded.