Opinion,
Mr. Justice Green:
In the case of Shellhammer v. Ashbaugh, 43 Pa. 24, we said: “ The rule is settled, therefore, that as between father and child the evidence of a gift or sale must be direct, positive, express and unambiguous ; that its terms must be clearly defined, and that all the acts necessary to its validity must have special reference to it and nothing else.”
In Moore v. Small, 19 Pa. on p. 468, Mr. Justice Woodward thus speaks of parol gifts of lands: “ A class of cases commonly called parol gifts from father to son is found in our books, the origin of which was in Syler v. Eckhart, 1 Binn. 378, very thoroughly reviewed by Judge Kennedy in Eckert v. Eckert, 3 P. & W. 362. The case'before .us belongs to this family. Now let it be observed that the legislature of Pennsylvania have made no provision either in the act of 1818, or that of 1834, or any other act of assembly, for the conveyance of title in pursuance of a parol gift of land......There is no such thing as the execution of a parol gift of lands under the statute of frauds, even between father and son. Gift is indeed a common law mode of assurance, but it is a contract executed......And if it be said that a son who goes upon land under a promise of a conveyance from Iris father, and expends his labor and money in making valuable improvements which cannot reasonably be compensated, is entitled to a decree of conveyance, it is because he is a purchaser for a valuable consideration......If the contract were ever made it must have had a time and place and terms, and it would be reasonable to expect a witness to speak of these; but declarations and confessions of the father have been so frequently received in evidence as proof of a contract, it is impossible to say they are unfit to go to the jury, but they should go, characterized by the [82]*82language of Judge Rogers in Robertson v. Robertson, 9 W. 42, as tbe most unsatisfactory species of evidence, on account of tbe facility with which they may be fabricated, the impossibility of contradicting them, and the mistakes and failures of recollection. Parental declarations are often made with reference to experimental arrangements or testamentary intentions for the benefit of a son, which are sadly misapplied when brought into court as evidential of a contract of sale. The posthumous recollections of a neighborhood as to the words of a testator, should weigh but little when set against his written will.” In Poorman v. Kilgore, 26 Pa. 365, Lowrie, J., said: “ The very nature of the relation therefore requires a contract between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it and nothing else.” In Sower v. Weaver, 78 Pa. 443, we held that to establish a parol gift of land, the evidence must be direct, positive, express and unambiguous. Sower brought ejectment on his legal title, against Weaver who set up a parol gift; the evidence of it was the testimony of himself and his wife. Sower by his testimony contradicted theirs. Held, that Weaver and wife, being but as one witness, the testimony of another witness or its equivalent was necessary to establish the defence. In Hart v. Carroll, 85 Pa., 510, we said: “In order to take a parol contract for the sale of lands out of the operation of the statute of frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made; that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained, and it must show performance or part performance by the vendee which could not be compensated in damages. These rules have been settled by a long series of authorities.” Indubitable proof was explained to be, “ evidence that should not only be found credible, but of such weight and directness as to make out the facts [83]*83alleged beyond a doubt.” The language of the last case was literally repeated in the case of an alleged parol gift of land in the case of Allison v. Burns, 107 Pa. 50.
The foregoing are but a portion of the utterances of this court upon the controlling question of the present case. They have not only never been questioned or impaired, but are the undoubted law of this commonwealth to-day, approved, sanctioned, justified by the ever recurring teachings of experience,, which constantly instruct us of their wisdom; and, demanded now, more than ever before, by reason of the enlarged competency of witnesses which permits the interested party himself to testify in his own favor in support of this most dubious, questionable, dangerous and vexatious title to real estate by parol gift. There could scarcely be conceived a more perfect illustration of the dangers of this species of title to land than is afforded by this case. It is entirely undisputed, indeed admitted by the plaintiff, that she knew that her mother was selling this very land as her own, and that the full price for it was paid, without the slightest effort on her part to prevent the sale, or to assert her own title or claim of title, in such a way as to make it manifest to the company that she really did claim the land. She says she told Schiffer, the defendant’s agent, that it was hers, that her mother gave it to her to build on, but this statement he most positively and emphatically denies, and says that he had never heard of her claim until a few weeks before the trial of the case. It is also entirely undisputed that she knew all about the original occupation of the land by the company, and their laying a track upon it, yet she made no claim for damages or sought in any maimer to prevent their occupancy or to assert her title to it. These vital facts are so entirely hostile to the idea of any real ownership of the land in the plaintiff, that they destroy any theory that the evidence in support of her title is indubitable: but there are many other facts in the case, entirely undisputed also, which demonstrate the utter lack of conformity of the plaintiff’s claim with the requirements of the decisions above quoted.
Thus, she is the only direct witness to the alleged gift of the land. Yet the story she, tells is so confused and uncertain as to the character of her title that it is impossible to determine whether it is a fee simple, a tenancy for. life, a tenancy at will [84]*84or a mere license to erect a dwelling on the land and occupy it ■ during the pleasure of her mother, the real owner. She was asked by her own counsel: Q. “ How did you get that lot ? A. Of my mother. Q. What was your mother’s name ? A. Elizabeth Evans. Q. How did you get this lot of your mother ? A. She gave it. She gave me this lot and told me to build on it......Q. (On cross-ex.) I want to have no misunderstanding about this. Did you say you claimed this frame house was yours, or that the land was yours ? A. She gave me this ground to build on.” In reply to a question as to whether she objected when the company laid their first track, she said: A. “I told them that the place belonged to me. • Q. To whom did you tell that ? A. I told Mr. Schiffer that she gave me this lot to build on......Q. I want you to say when it was and to whom you claimed that this land was yours ? A. I told Mr. Schiffer that we had that lot and we paid the taxes on it. Q.
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Opinion,
Mr. Justice Green:
In the case of Shellhammer v. Ashbaugh, 43 Pa. 24, we said: “ The rule is settled, therefore, that as between father and child the evidence of a gift or sale must be direct, positive, express and unambiguous ; that its terms must be clearly defined, and that all the acts necessary to its validity must have special reference to it and nothing else.”
In Moore v. Small, 19 Pa. on p. 468, Mr. Justice Woodward thus speaks of parol gifts of lands: “ A class of cases commonly called parol gifts from father to son is found in our books, the origin of which was in Syler v. Eckhart, 1 Binn. 378, very thoroughly reviewed by Judge Kennedy in Eckert v. Eckert, 3 P. & W. 362. The case'before .us belongs to this family. Now let it be observed that the legislature of Pennsylvania have made no provision either in the act of 1818, or that of 1834, or any other act of assembly, for the conveyance of title in pursuance of a parol gift of land......There is no such thing as the execution of a parol gift of lands under the statute of frauds, even between father and son. Gift is indeed a common law mode of assurance, but it is a contract executed......And if it be said that a son who goes upon land under a promise of a conveyance from Iris father, and expends his labor and money in making valuable improvements which cannot reasonably be compensated, is entitled to a decree of conveyance, it is because he is a purchaser for a valuable consideration......If the contract were ever made it must have had a time and place and terms, and it would be reasonable to expect a witness to speak of these; but declarations and confessions of the father have been so frequently received in evidence as proof of a contract, it is impossible to say they are unfit to go to the jury, but they should go, characterized by the [82]*82language of Judge Rogers in Robertson v. Robertson, 9 W. 42, as tbe most unsatisfactory species of evidence, on account of tbe facility with which they may be fabricated, the impossibility of contradicting them, and the mistakes and failures of recollection. Parental declarations are often made with reference to experimental arrangements or testamentary intentions for the benefit of a son, which are sadly misapplied when brought into court as evidential of a contract of sale. The posthumous recollections of a neighborhood as to the words of a testator, should weigh but little when set against his written will.” In Poorman v. Kilgore, 26 Pa. 365, Lowrie, J., said: “ The very nature of the relation therefore requires a contract between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it and nothing else.” In Sower v. Weaver, 78 Pa. 443, we held that to establish a parol gift of land, the evidence must be direct, positive, express and unambiguous. Sower brought ejectment on his legal title, against Weaver who set up a parol gift; the evidence of it was the testimony of himself and his wife. Sower by his testimony contradicted theirs. Held, that Weaver and wife, being but as one witness, the testimony of another witness or its equivalent was necessary to establish the defence. In Hart v. Carroll, 85 Pa., 510, we said: “In order to take a parol contract for the sale of lands out of the operation of the statute of frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made; that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained, and it must show performance or part performance by the vendee which could not be compensated in damages. These rules have been settled by a long series of authorities.” Indubitable proof was explained to be, “ evidence that should not only be found credible, but of such weight and directness as to make out the facts [83]*83alleged beyond a doubt.” The language of the last case was literally repeated in the case of an alleged parol gift of land in the case of Allison v. Burns, 107 Pa. 50.
The foregoing are but a portion of the utterances of this court upon the controlling question of the present case. They have not only never been questioned or impaired, but are the undoubted law of this commonwealth to-day, approved, sanctioned, justified by the ever recurring teachings of experience,, which constantly instruct us of their wisdom; and, demanded now, more than ever before, by reason of the enlarged competency of witnesses which permits the interested party himself to testify in his own favor in support of this most dubious, questionable, dangerous and vexatious title to real estate by parol gift. There could scarcely be conceived a more perfect illustration of the dangers of this species of title to land than is afforded by this case. It is entirely undisputed, indeed admitted by the plaintiff, that she knew that her mother was selling this very land as her own, and that the full price for it was paid, without the slightest effort on her part to prevent the sale, or to assert her own title or claim of title, in such a way as to make it manifest to the company that she really did claim the land. She says she told Schiffer, the defendant’s agent, that it was hers, that her mother gave it to her to build on, but this statement he most positively and emphatically denies, and says that he had never heard of her claim until a few weeks before the trial of the case. It is also entirely undisputed that she knew all about the original occupation of the land by the company, and their laying a track upon it, yet she made no claim for damages or sought in any maimer to prevent their occupancy or to assert her title to it. These vital facts are so entirely hostile to the idea of any real ownership of the land in the plaintiff, that they destroy any theory that the evidence in support of her title is indubitable: but there are many other facts in the case, entirely undisputed also, which demonstrate the utter lack of conformity of the plaintiff’s claim with the requirements of the decisions above quoted.
Thus, she is the only direct witness to the alleged gift of the land. Yet the story she, tells is so confused and uncertain as to the character of her title that it is impossible to determine whether it is a fee simple, a tenancy for. life, a tenancy at will [84]*84or a mere license to erect a dwelling on the land and occupy it ■ during the pleasure of her mother, the real owner. She was asked by her own counsel: Q. “ How did you get that lot ? A. Of my mother. Q. What was your mother’s name ? A. Elizabeth Evans. Q. How did you get this lot of your mother ? A. She gave it. She gave me this lot and told me to build on it......Q. (On cross-ex.) I want to have no misunderstanding about this. Did you say you claimed this frame house was yours, or that the land was yours ? A. She gave me this ground to build on.” In reply to a question as to whether she objected when the company laid their first track, she said: A. “I told them that the place belonged to me. • Q. To whom did you tell that ? A. I told Mr. Schiffer that she gave me this lot to build on......Q. I want you to say when it was and to whom you claimed that this land was yours ? A. I told Mr. Schiffer that we had that lot and we paid the taxes on it. Q. Did you claim, to Mr. Schiffer that the land was yours, and that he ought to buy it from you and not from your mother ? A. I told him that she gave us that place to build on, and we had paid the taxes on it. Q. Was that all you told him? A. Yes, sir. Q. You did not claim, then, that your mother had not a right to sell this land? A. I told him that it was ours, that she gave it to me to build on and I thought it belonged to me.” She was asked whether she had ever told Evan J. Evans that she claimed the land, and said she did. Q. “ What did you tell him ? A. I told him the same thing, that we had paid the taxes on the place and that mother gave it to us to build on.” She also said several times that her mother gave her the lot and that she told Schiffer and Evans so, but both of them deny this most positively and say they never heard of any claim of title by her until long .afterwards. It will be seen, then, that upon her own testimony it is entirely uncertain whether the lot was given to her in fee simple or only to build a house upon it; and, if the latter, whether she was privileged to occupy it during her life or during the pleasure of her mother. Of course there was no fixing of boundaries, or of the quantity of land to be taken, or statement of any terms. The ground was open not fenced, unoccupied and without any marked boundaries, and from anything that was said by the owner as was testified by the [85]*85plaintiff, it wonld be utterly impossible to tell either the boundaries, or the quantity of land given. But, again, the alleged donor was alive and competent to testify, and if she had really made the gift it was of the utmost importance to the plaintiff’s case to examine her and prove the fact. This was not done and the case is left without any verbal testimony of the grantor, but with her solemn deed to the defendant for the whole property made long after the alleged gift, and after all the declarations. said to have been made by her as to the gift to her daughter. She was the plaintiff’s own mother and naturally would have testified in her daughter’s favor if she could. But she did not. The defendant did not need her testimony, because they had her deed which was the strongest possible assertion of her ownership. This circumstance, then, makes most strongly against the allegation of a previous gift to the plaintiff, and of itself is sufficient to cast so much doubt upon the validity of the plaintiff’s claim of title as to bring it within the operation of the rule which requires such titles to be supported by indubitable proof. Then, as to the plaintiff’s credibility, she is absolutely contradicted by two persons, one, the agent of the defendant in making the purchase from the plaintiff’s mother, and the other, the agent of the mother in making the sale; both of whom testify most positively that the plaintiff, knowing all about the occupancy of the ground by the defendant and also the sale by the mother, never once asserted any claim of title to the land. As they are entirely disinterested witnesses it cannot be said that her testimony upon this most important, indeed, vital part of the ease, is indubitable. On the contrary it can only be justly designated as of the most doubtful and unreliable character.
But, damaging as these facts are, there is another, far more serious and fatal to the truthfulness of her claim. Her husband, though living with her at that time and for many years before, and being entitled to his curtesy in the land, if it was hers, made no kind of claim of title either for her or himself to the land, but on the contrary entered into a written, sealed agreement with the company to deliver up the possession of the premises, within sixty days after notice to do so, and also to remove the buildings from the land. This agreement recites that “ the said J. Knowles is in possession of part of cer[86]*86tain premises conveyed to the said, company by Elizabeth Evans, the owner of said premises,” and that he is willing that the company shall have possession. Here is a distinct recognition of the ownership of Mrs. Evans and an agreement to give up possession, which are simply fatal to the plaintiff’s claim of title. It is a useless task, because it is impossible, to try to reconcile this entirely undisputed fact with any theory of title in the plaintiff.
It was testified by Schiffer and Evans that both Mr. and Mrs. Knowles were present when this paper was signed. It was also testified by Griffiths that Mrs. Knowles was present when Schiffer and Mrs. Evans were bargaining for the lot, and that Mrs. Evans said that she was the owner of both the lots, but that the back building was put up by Mr. Knowles. It was testified by Schiffer that Mrs. Knowles was present and took part in the conversation between himself and Mrs. Evans when they were contracting for the sale of the property to the company, that she wanted him to agree to give her mother $1,000 instead of $800 for the property, and that when he notified her they wanted possession, she refused to leave unless they would give her some money. Griffiths testified that both Mrs. Jenkins (plaintiff’s sister), and the plaintiff, said that Mrs. Evans owned the property. Many other facts' almost equally damaging were proved on the trial, but it is not necessary to review them.
It is no answer to say that the credibility of witnesses is for the jury, and that they may disbelieve the testimony if they see fit to do so. That argument will not avail in this.class of cases, for the question here is as to the character of the proof, because it is offered for the purpose of creating title to land by parol. It must conform to certain requirements, and if it does not, it will not suffice to create such a title, and of this the coru’t must judge. The evidence of a parol gift in this case is of the weakest and flimsiest character, far more so than in several of the cases cited- above, where the court below was reversed for not taking the case from the jury by a binding instruction. We are clearly of opinion that this is what should have been done in the present case, and we reverse the judgment for that reason. The defendant’s fourth point [87]*87should- have been affirmed. These views render it unnecessary to consider the other assignments of error.
Judgment reversed.