Eckert v. Eckert

3 Pen. & W. 332

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1832
• Status: Published

Opinion

The opinion of the court was delivered by

Kennedy, J. —

No less than twenty-three reasons numerically have been assigned and filed by the coutlselfor their appeal in this ease from the decision of the Circuit Court, upon a motion for setting aside the verdict of the jury and granting a new trial. It is admitted by them, that the last six of these reasons are substantially contained in the preceding. The first six and the tenth and eleventh consist of exceptions to the opinion of the court given on questions of law in admitting and rejecting testimony; and in misdirecting the jury in the law of the case throughout. The remaining reasons are exceptions to the charge delivered by the court to the jury, in which it is alleged that the court misapprehended and misstated the evidence to them in many particulars; and that the charge upon the testimony and the facts to the jury, was given in such a way as to withdraw from them the decision of those matters.

It will be unnecessary to notice each of these exceptions to the charge of the court, because many of them are nothing more than a reiteration of the same things, but in a form some little variant. The objections, however, presented in them, have been fully considered by this court and will now be answered without referring numerically, to the reasons themselves as filed.

The first exception was to the admission of Philip Echert’s will, which was most clearly relevant and available testimony for the defendants. It appeared from the evidence given by the plaintiffs in the cause, that if their father Peter Eckert, who was dead and one of eight children of Philip Eckert the testator, had not become the owner of the land in dispute, either by gift or purchase from the testator in his lifetime, that the testator had died seised of it in fee : and it having also been proved upon their part, that they were among the number of the testator’s' heirs at law, they, as such, would have been entitled to a verdict for an undivided eighth part of the land, had not the will been given in evidence to shew that it had been otherwise disposed of by the proper owner.

The second exception was- to the admission of the evidence of George Beckley, which went to shew that at the same time that Peter Eckert moved upon the land in dispute to reside, he got and took with him, almost all the stock and farming implements belonging to his father Philip Echert, consisting of horses harness for the same, wagons, cows, sheep, swine, ploughs, harrows, bags, bagging, &e.

To judge of the admissibility of this evidence, we must look at the testimony which had been given in the cause by the plaintiffs and the deductions which they claimed to draw from it. From their evidence it appeared that their father in the spring of 1820 had taken possession of the land; but under what arrangement did not appear from any direct testimony. The plaintiffs, however, claimed that it was either under a parol gift or contract for the purchase of it from his father Philip Eckert, and that the taking possession was such an execution of the contract in connection with the improvements made upon the land afterwards by their father, as took their case out of the statute against frauds and perjuries. Seeing then that no direct testimony was given by the plaintiffs of any previous agreement whatever, made between their father and his father, shewing the terms and conditions upon which he obtained the possession of the-land, or indeed tending to shew .any thing about it, I consider the testimony of George Beckley not only admissible, but that it was strongly relevant to repel the inference claimed to be raised by the plaintiffs of their father having obtained the lands from their grandfather, by a gift, if not by a contract for the purchase of it: for, without something like direct testimony, it ought not to be readily inferred that a father would make a gift to one child out of eight, to the exclusion of at least six of them, of almost all the property both real and moveable, which he at the time owned, without making any provision even for himself and his wife.

The third exception is that the court erred in admitting in evidence the acts of Philip Eckert, done after the summer of 1822, tending to prove that the land in dispute was his, and not his sons. The acts intended to be referred to in this exception are not mentioned or designated; and although I have examined all the testimony given on behalf of the defendants, I cannot discover that any acts of Philijj Eckert, were given in evidence, to which this exception can be applied. I can readily imagine however many acts which might have been done even after 1S22, by Philip Eckert, which would have tended to have shown that he was still the owner of the land, and which would have been both admissible and relevant.

There is nothing in the fourth exception. Every one must perceive at the first glance, that ifyvould be an idle waste and unnecessary consumption of time on the trial of a cause, if a party were obliged to stop and reduce first to writing every tiling which he proposes or offers to prove or give evidence of, merely because his adversary choscs to require it. The reason for committing it to writing at any time is, that the purport of it may be fully and accurately understood and comprehended, in order to judge of its admissibility, and relevancy, of all which surely the court must judge, and exercise its own discretion.

The fifth is that the court refused to admit the testimony of Adam Stager, which was offered as rebutting evidence on the part of the plaintiffs, to shew that Peter Eckert had worked for his father many years after he attained full age, and what his services were worth per year; with a view to repel the effect' of the evidence given by the defendants proving that Peter had got all his father’s stock, implements of husbandry, &'c. In considering this exception it must be remembered that not a tittle of testimony had been, or was afterwards given in', the cause, tending to shew that Philip Eckert had either made a gift or a sale of this property to Peter. No witness produced could testify that Philip had at any time ever said so, or that he had given it to Peter for his labour and services, performed after he arrived at full age; nor did it appear that Peter had ever claimed the property in that way, nor in any other that 1 recollect of, as absolutely his own. This evidence was then offered by the plaintiffs to prove absolute ownership of all this moveable property in Peter, without the least shadow of testimony going to shew a contract, or even an understanding between Peter and his father, that his father was to pay or satisfy him in any manner fqr his labour, or that he had made cither a gift or a sale of it to him, upon any consideration. It appears to me that this testimony under the circumstance of this ease could not in the slightest degree conduce to prove ownership of this moveable property in Peter, and was therefore properly rejected! •

The sixth exception is that the court erred in their charge to the jury in all the matters of law arising' from the testimony in the cause. This exception is quite too general in its terms to be admitted in practice. But giving to the plaintiffs the full benefit of it and all that they can possibly claim under it, I do not discover that the court has erred in charging the jury in any matters of law growing out of the testimony in the cause.

It may be, that in filing this sixth.reason the matters contained in the tenth and eleventh reasons were in view, and intended to be brought forward under it; as they are the only remaining reasons which seem to embrace matters of law exclusively, and I shall therefore notice them now.

The tenth reason is that the court erred in charging the jury “that if a father puts a son on a tract of land, telling him that he will give it to him by his will, and in consequence of his gift and delivery of possession, the son makes valuable improvements, on the faith of this gift, and delivery of possession, that this gift and possession and improvements, give to the son no title to the land by the laws of Pennsylvania. I have searched the charge of the court throughout but in vain for the proposition which is made the basis of this exception. Nor does it appear to me that the testimony given in the cause was such as to make it necessary for the court to give its opinion to the jury upon the question involved in it. There was no part of the testimony which-went to prove that Philip Eckert the father, put Peter his son upon the ' land, telling him at the same time that he would give it to him by his will. The farthest that the testimony on this point goes in favor of the plaintiffs is that the father some years after Peter was in possession of the land, and after he -had made the improvments upon it, told some of the witnesses that he had “whiled it to Peter,” or “given it to him by his will.” None of the witnesses professed, or undertook to say, that they had Soever heard the father and Peter even talk together, or heard either in the presence of the other speak on this subject. All that the court from its charge appears to have said to the jury on this part of the case was, that the circumstance of a son being in possession of land belonging to the father, to whom the father had devised it by his will, gave the son no title to the land during the life of the father. Nor after his death if the father before his death, should sell the land, or by a new will dispose of it otherwise to another, which he could and might do at his pleasure. Neither would it alter the case, although the father were heard to repeat fifty times or more, that ‘ he had given the land by his will to his son, his will during his life would still be revocable; or if the father had promised to make a will by which he would give a tract of land to his son who was in possession of it at the time, it would not pass or carry the land to the son. In this it does not appear to me that there was any error.

The eleventh exception is the same in substance with the tenth, and therefore already answered. It may however be well enough to observe, that the question raised in these two last exceptions is predicated on a statement of facts assumed without any proof given to establish them; and for this reason the court would not have been bound to have charged in regard to it, even if the counsel of the plaintiffs had required it. The facts assumed were that the son had made valuable improvements upon the land, and paid the taxes assessed on it for a series of years, during the time he was in possession of it, upon the faith of the assurance of the father given to him, that he would will the land to him. Now it is only necessary to read the statement of the testimony given us in this case, in order to see that there is not an iota of evidence in it tending to prove that any such assurance was made by the father to the son, or that he ever told him that he would do so. The only evidence of an assurance made by Philip Eckert, to his son Peter, of any kind, is in the testimony of Joseph Bricker, which was long after the possession had been taken and after all the improvements had been made; which will be noticed in the sequel.

I ought perhaps to have classed the thirteenth reason filed with those which relate to questions of law, rather than matters of fact; and therefore will observe upon it now.

It alleges “that the court erred in charging the jury that the evidence of the gift, and of the sale and the possession of the land delivered to Peter, and the improvements made by him on the land, by expending his money and labour, were not inlaw any bar to his father’s making a new will, and his giving the land away from the wido.w and children of Peter the son.” Considering all that is here imputed to the court, in the abstract, there does not appear to b,e any error in it, and if there be any thing wrong in it it must be in reference to the testimony which was given on this head. There is no evidence in the case which I e-aii perceive of' either a gift or sale b,y Philip Eckert to Peter, upon or at the-time he go,t possession of the land, nor yet before he made the improvements upon it; and to this effect the court told the jury, or if there were, the court could not see it, but if the jury did1 they might aetuponit. Without testimony being-given then to shew a gift orsaleof the land before the making of the improvements, I cannot conceive that a subsequent parol gift or sale of the land without a- cent of money being shown to have been paid upon the purchase, could transfer any greater interest in it than an estate at will; which would be no bar to the father’s giving or willing theland to whom he pleased afterwards, and taking- it away from Peter’s widow, and‘ his children. To say that it would be otherwise, would not only-be in direct contravention of the statute against frauds and perjuries, but in contradiction even to those decisions, which in some degree, have indirectly repealed it, by a mistaken exposition of it.

With respect to all the other reasons which remain unnoticed,, and impute to the court a misapprehension, and incorrect statement of the testimony to the jury, it'appears to me that the hn.is apprehension and mis-statement, if there be any in the ease, lie on the part of the counsel in stating and filing their reasons for this appeal. I do not however conceive it necessary to point out further the discrepancies between the charge of the qourt, and that which has been substituted for parts of it by the counsel in their reasons as filed; because I feel perfectly satisfied from a careful review of the whole of the testimony given on the part of the plaintiffs, in connexion with some of the evidence given on the. side of the defendants, that the plaintiffs were not entitled to recover upon the most favorable construction that could rationally be given to their testimony. ■ I will now turn to the testimony from which I think this can be made to appear very clear.

Philip the father was never heard to say that he had conveyed the land to his son Peter; nor that; he had given it to him in any other wajr than by his will. ' It is true-that some of the witnesses on behalf of the plaintiffs have testified to his having said that he had given it to him, without saying how; but others produced by the plaintiffs have testified that the father said lie had willed the land to him, or gave it to him by will, and that he was to pay twenty-five hundred pounds for it to the father’s estate after the father’s death. Hence it appears to me that the only rational inference to be drawn from this testimony, taking it altogether, and admitting it to be true, is that the father, as often as he spoke of having given the land to his son Peter, must be considered as having an allusion to his will, andas saying nothing more than that he had given the land to Peter by his will; which if made known to Peter-, he must be presumed to have known was revocable. There is notone of the witnesses who says tliahhc ever heard the father and son talk together on this subject: and only one who says that lie ever heard the father say that Peter and’ the father had even Spoken together of it, and that but once. Joseph Bricher is this witness; who has testified, that he heard the father say at one time, but when he does not state precisely, though it must-have been, from what he has said, sometime after the house was built, which was in 1822, “That Peter told his father that he did not know what would happen; how matters would go about this land. That he had built on the land, and it might be taken from him. The old man said it was made in such a way that no person could take it from him.” From other parts of the testimony given on behalf of the plaintiffs it appears that George, the elder son of Philip, the father of Peter, had lived upon, and occupied the land in dispute 'during-some eight or ten years, until near the time that Peter took possession of it; and that in that time George had built a stone spring house, and a large log stable upon it; and from, the testimony aiJohn Wayne and Joseph Swope, witnesses produced by the defendants, that he had put up on this land, a frame addition to the barn, a corn-crib, wagon-shade and hog-stable..

It also appears from the testimony of the plaintiffs, that when George moved off from this land in the spring of 1820, that Peter went on it first to reside, and continued there until his death: but upon what terms or conditions does not appear. And it would seem from that part of Joseph Pricker’s testimony which has just been recited, that Peter did not consider himself as having any agreement with his father by which he could hold the land: for he tells his father “he did not know what would happen, how matters would go about this land. That he had built on the land, and it might be taken from him.” At this time, although after he had made the improvements, he docs not make the slightest allusion to any gift or promise of his father, nor ask him to fulfil any contract that he had made with him in respect -to this land; he does not even insinuate that any such had ever been made with him, or that his father had at any previous time given him any assurance that the land should be his, either upon, or without terms. Had it been so, would he not at this time, when he felt uneasy about it, have reminded his father of it? This part of the testimony so far from proving that thefather had ever made Peter any previous gift, promise or engagement that the land should be his, proves thereverse, and that Peter at that time was only anxious to have something of the kind from his father. It also goes to shew that Peter was not put into possession of the land in pursuance of either a gift or sale. This necessarily leads us to the conclusion that Peter took possession of the land, and built the smoke-house, oven and dwelling house, without any gift or assurance from the father, that he would give him the land, and repels most forcibly the idea that the father had previously given it to him. If so, Peter’s taking possession of the land cannot be considered as having been done in execution of a gift of the land to him by his father, nor yet of a contrat for the purchase of it, so as to make what was done the execution of a parol contract, and by this means take the case out of the operation of the statute of frauds and perjuries: if then a gift or contract for the sale of the land were made, it must have been after Peier had taken, and while he was inpossession of i£ and after he had made the improvements, which would leave the case fully within the statute against frauds and perjuries. To this, however, it is objected and argued that the erection of such valuable buildings as were made by Peter upon the land, within the short space of three years after he first took possession of it, is altogether incompatible, and cannot be recenciled with any other idea than that of ownership by Peter, and that the jury in the absence of testimony to shew clearly the precise nature of the arrangement between Peter and his father, under which he took possession of the land, and made the improvements upon it, might and ought to have presumed a gift or sale of itto him by his father, and that the court ought to so have instructed the jury; and the more especially so, as the father stood by looking at Peter as he progressed with the improvements, not ob jecting to but approving of what he was doing.

Possibly there might be great weight in this argument if Peter Eckert and Philip Eckert had been strangers to each others, that is, not so closely related. But when we come to consider that they stood in the relation of father and son, and likewise to reflect upon the practico and understanding that generally prevail between a father and his children in this state, in respect to their living with him many years, sometimes after they have arrived at full age, without any agreement for compensation, indeed; most frequently until they are married, if the father should happen to. have a comfortable home for them, and he is in a situation to furnish them with employment. If he be the owner of land's, where his children may have separate dwellings after marriage, and'sometimes before, they are placed, or permitted to go upon these lands, oftentimes without any agreement, to make all the profit they can out of them by occupation and use, and during such occupation to improve them either to promote their fortunes or to please their taste. This oc-, curs frequently between fathers and their children without any agreement whatever for that purpose. It is done by the children in full confidence that they will sooner or later become the owners of such portions of their father’s estate as will more than compensate them for all their labour and improvements. Is it not, I would ask a most reasonable expectation? for we have seldom seen those children disappointed of being rewarded to the utmost extentof their wishes, who have been most industrious and most zealous in improving their father’s estate, and adding to his wealth; but who trusted entirely to parental affection and liberality for compensation The equity and justice of a father distributing his property equally, or according to their deserts among his children, athis death, is a sentiment that has long since pervaded the whole of this community. It wasthis that gave birth to our present statutes regulating descents and the distribution of intestate’s estates. We also know from experience, and daily observation, that wherever a father does happen to depart from the rule of equality in distributing his property, that it is in favor, most commonly, of the child who has aided him most in acquiring, and adding to the value of it.

So that when we come to examine these matters and look at them as they take place, and are presented to oar view, almost daily, between a father and his children, it appears to me that no such presumption-as has been contended for, do.es, or ought to arise. And that a son’s getting possession óf a part, and perhaps the most valuable portion of his father’s real estate, and making permanent and valuable improvements on it, without clear and satisfactory testimony to authorise it, is not to be referred to the son’s having become the owner of the estate either by a gift, or sale from the father. If it were to be held otherwise it would not only he repealing the statute against frauds and perjuries, but reversing the order of nature itself. The rule laid down in the statute is that no agreement of the owner of land, although it should be made with a view to part with the fee-simple estate in it, unless reduced to writing, and signed by the party shall be sufficient to pass any greater interest therein than an estate at will. If, however, we were to decide that the owner of land, by putting another into possession of it, who makes valuable improvements upon it, without either a verbal or written agreement for the sale of it to him, thereby loses all his right to the land; or in other words, thereby passes an estate in fee-simple, instead of one at will, would not only be laying down a rule overturning the one established by the statute, but inverting it; by making it necessary for the.owner of land, as often as he permitted another to take the possession of it, in order’ to guard against losing it; to take a written agreement of the person so put into possession, that he will not make valuable improvements upon it, and thereby improve the owner out of his estate: This it is believed, would be so obviously repugnant to every rule of practice on this subject, and at the same time so novel in its nature, as to render any principle inadmissible which would make such a course necessary, in order to protect men in the enjoyment of their rights.

It would be most iniquitous, and unjust because it would go to deprive a man of his estate, without receiving an equivalent for it, against his will, and to give it to another, who had no reason to expect it. And again would not the effect of it be, as between father and child, to reverse the law of nature, by depriving the parent of that authority and influence which the best interests of society, seem-to require that he should ever maintain over his child. The father with a view to encourage his son in a course of industry puts him in possession of a tract of land, and tells him to work it, and to make the most he can out of it, but at the same time wishing to keep a hold upon his son, so that his advice or admonition if requisite, may not be disregarded, he retains the title to the land in himself: and perhaps wisely as well as fortunately for both the son and himself, does he do so: for interest has too often a much stronger hold upon the minds of children, than either filial love, or a sense of filial duty. How frequently do we see the father who has parted with all his estate to his children treated not only with neglect, and left to suffer fpr want of the ordinary necessaries and comforts of life, but in some instances avoided altogether, and even contemned, while on the other hand the parent, who retains his property, we see retains his authority over his children, and is cherished, or is at least apparently respected, and attended to by them throughout life. We ought therefore to be cautious, and ponder well before we sanction a principle, which might and doubtless would in many instances produce such results: among which would be to make beggars of parents for the purpose of rendering children not only weaithly, and independent, but disobedient and regardless of their parents, by giving and transferring to the children the property of the parents, against their consent, and without their ever having intended to part with their right to it. As it is impossible to foresee what time, may bring about, parents may in the course of it have occasion to use their property for their own subsistence; or to reclaim it with a view to reform and control vicious children; or to make a more ample provision for one or more of their children, than was at first intended; which hasbeen rendered indispensably necessaiy in consequence of some inevitable calamity, by which they have become totally unable to maintain themselves.

There is still, however, another view which may be taken of this case as it appeared in testimony, which precludes all idea of right on the part of the plaintiffs to recover the land in dispute. The annual value or rent of it at that time, according to the testimony of the plaintiff’s own witnesses was equal to from four to five hundred dollars,more thansufficient with the other means put by thofather into the hands of Peter to have met, and defrayed all the expenses, of making the improvements, as fast as they progressed. In the course of the third year,and not until then were they finished ;now counting three years rent at twelve hundred dollars, which is the lowest estimate, Peter may be said to have been indebted to his father at the end of the third year in that sum,for the use of the farm alone, and bound, if required, to have paid it. There is no evidence, however, that the father ever did require, or that Peter ever paid it, unless it bo considered, that as an equivalent for it, he had made the improvements upon the land for his father. And although the witnesses say that the improvements made by Peter were worth two thousand dollars, yet the amount of cash s^ewn to have been actually paid out by him for them, falls short of five hundred dollars. It must, however, be admitted, that in addition to this, a great deal of labor was performed in completing the buildings, in quarrying and hauling stone, and other materials for them, which was all done by Peter, which, if he did not pay money for, ought still to be counted as equal to it. But then it must also be recollected that his father furnished him with the means chiefly of doing all this, without any charge, that we hear of: for when Peter moved upon this land, his father gave up almost every thing to him which he had upon his home tarm. He got two wagons, a team of five horses, with harness for them, a considerable stock of cows, sheep, swine, ploughs, harrows and other implements of husbandry. The father had just before this sold and conveyed by deed his home farm to his eldest son George, for which George was to pay his father three thousand pounds, and he was about to move to a house upon a small lot of ground to live where he could neither maintain, nor have use for such things; and as he was about to place Peter on his other farm, that is the land in dispute, he sent every thing thither with him that he had no use for himself. Even the grain which was growing on the home farm at the time of the sale to George was reserved by the father, and given to Peter, which may fairly be presumed to have been equal in value to four or five hundred dollars, say at least one year’s rent of the land in dispute; for the home farm is said to have been of more value than it. The farm in dispute was completely stocked, and provided by the father with every thing necessary for cultivating, and carrying on the business of the farm, and making the most of it, as well in the way of raising grain, as breeding of horses, cattle, &c. It may therefore be well supposed that the annual proceeds of the land in dispute, with the annual proceeds and advantages derived from every thing which Peter had upon it, furnished by the father, could not at the lowest estimate have been worth less than fromsevphto eight hundred dollars, which, at the close of the three years,would have amounted to upwards of twenty-one hundred dollars, Much added to the value of the crop, gotten of the home farm, would have amounted to upwards of twenty-five hundred dollars, more thán the highest value set upon the improvements made by Peter upon the land. Hence, in the absence of testimony to show any positive gift, or sale of the land to Peter, we might, and it appears to me ought to refer the making of all the improvements to an agreement between the parties, that was not necessary to he reduced to writing, and to be signed, in order to make it effectual and operative according to their intention. This agreement would be that Peter should have the use and occupation of the land, together with that of the other propr erty'delivered to him, for which he was to make the improvements upon the land for the. father.

This view of the case shews that Peter could at no time have sustained an injury, even if the father had removed him from the land, for the profits and advantages received by him, appear at all times to have been in advance of his making the improvements, and that he must have been completely compensated, and greatly in arrear with his father at the time of his death, if a strict account had been taken. It also steers clear of all collision with the requi si~ tions of the statute against frauds and perjuries.

I also take the rule of decision to be, that wherever the party claiming to have the land under a parol contract, made after he came into possession of .it, appears to have made improvements, and to have been fully compensated for them, that a specific execution of the contract will not be decreed. Nay, more, I believe that whenever adequate redress can be made by compensation in money, a conveyance of the land will not be decreed. For it is only in those cases where the possession has been taken, and given under a contract for the purchase, and where the injury done tó the party complaining has been produced by the fraudulent conduct of the other party, and is at the same time of such extent as to admit of no redress, commensurate with the injury, short of a specific execution of the contract, that a conveyance of the land ought' to be decreed; or in this state, where for want of a court of chancery, no conveyance can be decreed, that, the title to it ought to be considered as having passed under the parol contract,in the. same manner as if a deed of conveyance had been made. If this be not the principle Upon which courts and juries ought to proceed, it is plain that the statute against frauds and perjuries will be violated without any necessity for it.

A number of cases have been cited by the counsel for the plaintiffs, and among the number the case of Syler and Eckhart, 1 Bin. 378, which is the only one of them all that bears resemblance to the present. The report of this case does not give the evidence, nor yet the particular circumstances of which evidence was given on the trial. There is some reason to believe however, that it was very different from the one now under consideration in several particulars, of so much importance as to make it a very different case. Some of the counsel concerned in that cause, were of the counsel in the present, and have told us without contradiction that the land in dispute in Syler and Echhart lay upon the spurs of a mountain, and was altogether unimproved, when the sons took possession of it, and of little value compared with the value of its improved state. From the opinion of the court, delivered by the then Chief Justice, it is also to be inferred, that the parol agreement of the father was clearly proved, and that the sons, in consequence of it, took possession of the land, and made the improvements. The improvements, it may well be imagined, were almost the only thing which rendered it worth having. We know that lands of this description are often improved, and made valuable by a course of labor and industry that but few would be willing to bestow, even if the lands were offered to them as a gift. Indeed it is not easy for those, who have never taken such lands upon such terms, to form an adequate idea of the cost. Connected with such circumstances I am inclined to think that the decision in Syler nn&Eckhart may have been right. But how different is the case before us? The land, at the time Peter took possession of it was well improved in every respect, except as to the dwelling house, which was considered probably of a character not equal to the quality of the land, which was of the very best, and so productive as to be worth a rent of four or five hundred dollars a year. And again, there is no evidence in this case, to shew that Peter took possession of the land in consequence of a gift or sale of any kind from his father.

The evidence here seemed to be of such dubious character, even in the minds of the counsel, for the plaintiffs, that they have at one time contended that it proved a gift, at another a sale; and in the last resort, that it clearly established either the one or the other, without undertaking to decide which of them. Surely it would be most perilous to suffer such testimony to deprive men of their real estates. It would be to sanction, and permit that species of fraud to prevail, which the legislature by the statute intended to guard against.

If from the evidence a sale could be fairly inferred, it would be that it was made after Peter had gone into possession of the land, and made the improvements, and presents the case of a parol sale of land, without any thing done under it, which is admitted to bo within the statute. Besides there is not a tittle of evidence that Peter ever saida word to any person about his having purchased the land of his father, or in any way acknowledged his liability to pay his father, or his estate any thing for the land, nor yet of the father’s ever having spoken of it to Peter, or in his hearing. Now without some evidence of Peter’s having admitted his liability to pay, no action would, nor could be maintained against his personal representatives, or estate, to recover the money,’and therefore, I doubt whether his heirs would be entitled to recover the land, even had the father of Peter, made a declaration in writing under his hand, that he had sold the land to Peter, for twenty-five hundred pounds, to be paid by him, but certainly not without first tendering the purchase money before commencing the suit; for otherwise they would get the land for nothing against the express terms of the agreement. Lawrenson v. Butler, 1 Scho. & Lef. 13.

As to the allegation, among other reasons for- a now-trial,that the-charge of the court to the jury upon the testimony, and the facts in the cause, was in a way to take the decision of the facts, from the-jury, which is the only remaining one to he noticed, it appears to me that this reason is not supported in point of fact. For in. the very brief notes, which vye have, and which can be considered little more than the skeleton of the charge, it does appear that the. judge submitted to the determination of the jury the fact of there having been a gift, or a sale of the land in dispute, by the father to the. son, upon one or other of which grounds the plaintiffs rested their laim to the land. It is true that the judge told the jury that if th.cre were any evidence of such gift or sale,he could not seeit; but he likewise told, them, that if they could seesuch evidence, that they should, as I understand it, find according to it. His words are these “if the old man gave it for nothing, or if he agreed to sell and convey, and Peter has paid, if it ever was intended or understood, that the old man was to give a deed,it is one thing, and the cases read apply. I can find no evidence of such agreement, if you can you will do so;’’ which was leaving it to the jury to discover and say what the evidence was, and to find the facts accordingly, and then to apply the c ases, that is the law as read by the counsel for the plaintiffs. This cannot be considered as either withdrawing the facts from the jury, nor yet controling.them in the finding of the facts. The judgment must be affirmed.

Ross J. dissented.

Judgment affirmed.

ECKERT against MACE and others.

Rosana J. — Where, a9 here, there is no pretence of misdirection in point of law, and the judge who tried the cause is satisfied with the verdict in point of fact, nothing but an extraordinary case can excuse the granting of a new trial; no such case is presented here. On the contrary' the jury could not well have found any other verdict on the evidence, than that which we are asked to set aside. In no case cana parol conveyance of land be taken out of the statue of frauds, but by a particular equity arising from the payment of purchase money, or what is much the same, expenditure in improvements, made with the money of the donee, of which it would be a fraud in the donor to deprive him/ and such an equity cannot be pretended by a volunteer,. A parol gift to a son, which has induced iio such expenditure, is as much within the statue, as if it were to a stranger. The evidence here scarcely gave colour to the contract of sale which it was attempted to establish, or even to the existence of a gift. It consisted in a great measure of loose expressions in the course of accidental conversations, in which tile father spoke ofliis son as the owner of thefarih, and of his having put it to him at a particular valuation. This is explained by the testimony of John Zuch, who proved, that the father said he had made, a will in the life time of the son, in which he had put the land to him at twenty-five hundred pounds. It is evident therefore, that he had estimated the value merely with a view to a division of his estate. When his son offered him three hundred dollars, and evidently with a view to entangle him in a contract,'he refused it saying that he owed him nothing. One witness indeed spoke of an admission that the money was to be paidat the father’? death; but even this is inconsistent with the notion of a present purchase, as the postponement of payment could be referred to no other motive than to leave the whole subject to the father’s control during his life: but it would be attended with extreme danger to deprive a man of his estate on evidence of loose and unguarded expressions at a time when tile speaker was under no apprehension that his words would ever be brought up to affect his title, and when he was not apprised of its being necessary to explain his whole meaning with clearness and precision. No witness speaks of his having admitted the existence of an engagement or obligation to vest the title in his son, cither in his own life time or at his death without which the defendants can pretend no color of right, and if this were otherwise, what is the supposed consideration of the contract? It is shewn that the son paid rather more than four hundred dollars in taxes, and in the erection of buildings. By whom the residue of the expenses was defrayed is not shown; but it cannot be doubted that all that was paid by the son. carne out of the profits of the farm, (a valuable one) which it seems he had enjoyed for several years: for it is not pretended that he had any estate which he did not originally-derive from his father. There was therefore neither sale, consideration, gift nor expenditure.

Every one knows how common it is for parents to put in execution, during life, those testamentary arrangements which they meditate, to have consummated at their death; but still as testamentary arrangements they are consequently subject to revocation. The wisdom of their plan of distribution is thus submitted to experiment, while the parent is enabled to do something beneficial by anticipation, without endangering his bounty by the unthriftiness of his child. But no prudent man dare entrust the possession of an estate to his child, if loose and unguarded expressions which are very commonly, though inaccurately, used in reference to property thus enjoyed, were sufficient to deprive him of the title. Parents well know the value ofsubjection, and the danger which there is in making children independent: So that when a written conveyance has not accompanied the transfer of possession, it may safely be affirmed in ninety-nine cases in a hundred, that the parent meant to keep the stall’ in his own hands;andin such a case, what right has a jury to deprive him of it? Where a son having come of age, continues to reside with his father, or on his land, he takes his chance of obtaining compensation for his services, in his father’s bounty; and if he be disappointed in his reliance upon that, he has no right to complain. Every man is the best judge of whatis a just distribution of his estate according to his circumstances; and jurors who compel him to give his property differently, violate one of the most valuable privileges of a free man, the right to dispose of property by will. There may be such a thing as a sale to a child by parol, or a gift rendered valid by improvements, but such a case requires much stronger and clearer evidence than would be necessary to establish a similar transaction between strangers, which can be referred to nothing else than a contract, it ought to be proved fully; satisfactorily and almost beyond the possibility of mistake.

Ton, J. dissented.