JOHNS, J.
James Watson was a pioneer of Douglas County, and his sons and daughters became prominent in the history of the state. At the time of his death he was the owner of about 900 acres of land in Douglas County, the south line of which for a distance of about three miles was on the east fork of the North Umpqua Eiver. About 90 acres, known [386]*386as farm land, were on the river bottom. The remainder was hillside land covered with some brush and a little timber, more or less rocky, without water, and about its only value was for grazing purposes. After the death of the father, his widow, the defendant son, and the daughter Florence, who was ■ then about 8 years of age, continued to reside upon the old home place. The rest of the family were more or less scattered. It appears that during that period the land was not very productive, and outside of stock range it was. not of much value. To provide for the care, comfort, and maintenance of their mother in her old age and the daughter Florence in her youth, the idea was conceived of entering into a contract with the defendant for that purpose, in consideration of which the remaining heirs would convey to him their interest in the lands. This led to the preparing of the agreement of September 24, 1883, which was actually signed by D. L., J. F., E. B., Florence I., and R. J. Watson, and S. H. Hazard, six of the heirs out of the ten. But it was never signed by the defendant, with whom it was purported to have been made. It specifically names the' nine brothers and sisters and their wives and husbands as “heirs of the estate of James Watson, deceased, of the first part, and John L. Watson, of the second part,” qnd further recites:
“That the parties of the first part hereby bargain, sell, and agree to convey uiito John L. Watson, the party of the second part, all of that part of the lands owned by James Watson in Douglas County, Oregon, at the time of his death which are situated on the south side of the east fork of the North Umpqua River, upon the terms and conditions following: Said lands are subject to the dower of Emily A. Watson, widow of the said James Watson, and the sole interest which the parties of the first part have or own [387]*387therein is as heirs, either direct or indirect, of the said James Watson.”
This contract was dated September 24, 1883. The widow, Emily A. Watson, died in April, 1896. The daughter Florence married A. M. Crawford October 22, 1885. At the time the contract was signed the widow, the daughter Florence, and the defendant son were all living upon and in the actual possession of the lands; that is to say, there was no change of possession, and the defendant did not actually enter or take physical possession under the contract. From the wording of the contract it is apparent that it was then contemplated that it should be signed by all of the nine brothers and sisters, and that upon the performance of the terms and conditions therein stated the defendant should have a conveyance of all of their respective interests and become the sole owner of the property. Three of the heirs never did sign the contract, and it was never executed by th'e defendant as the party of the second part. In other words, upon the present theory of the defendant, he now claims and seeks the specific performance of a contract for a Conveyance of an undivided six-tenths interest for tlie same identical consideration that he was to pay for a nine-tenths interest in the property. Under the contract, of which he now seeks specific performance, he would acquire a six-tenths interest only, whereas, if the contract had been signed by all. the parties as originally intended, for the same consideration he would have acquired a nine-tenths interest. Under the contention' which he 'now makes, defendant was entitled to a deed and specific performance upon the death of his mother. By the terms of the writing the provision for the care and support of Florence terminated with her marriage to A. M. [388]*388Crawford in October, 1885, and as to the mother it ceased with her death in 1896. By the defendant’s own testimony, he nSver claimed that he had any right to a specific performance until at least six years after the death of his mother. After the marriage of Florence, the mother lived with the defendant for about one year, and the testimony is conclusive that during the last nine years of her life she lived with her daughter Florence.
1. Assuming that the contract had been duly executed and was in force, to entitle the defendant to a specific performance it was his duty to take care, of and support his mother during all of her natural life. There is no claim or pretense that he in any manner supported or took care of her during the last nine years preceding her death, and there is testimony tending to show that at times she assisted him during that period. The claim of the defendant is not supported by the evidence. His own testimony is evasive, indefinite and uncertain. As we analyze the record, the signed contract was never legally delivered, and it was never the purpose or intent that it should be in force and effect until it was signed by all of the nine heirs, and three of them never did sign. Although it may have created a charge or lien upon the respective interests of the heirs in the property for the use and benefit of the mother and the daughter Florence for their care and support, the writing itself, as between the parties to it, was unilateral. The defendant did not promise, undertake or agree to do anything, and as to him it could not be enforced. If it meant anything, it was the duty of the defendant to care for and support his mother during her natural life, without any charge or claim against her or her estate. When she died he was ap[389]*389pointed as administrator of her estate, and later filed a verified claim against it as follows:
“On or about 1876, to and including the year of on or about 1898, paid cash to Mrs. E. A. Watson, above deceased, for her support and the support of her family at divers times and in divers sums of money amounting in the aggregate to the sum of $800.”
And for one thing and another he presented a claim against her estate amounting to $2,515.40. It is true that this whole claim was later compromised for about $300, but the fact remains that he did verify and file a claim of $800 against the estate,of his mother for her care and support during the period covered by the alleged contract.
The testimony is clear and convincing as to how Florence Crawford acquired all of her interest. For the Hazard deed of one tenth she paid $400 in money. As stated, the mother lived with Florence the last nine years of her life.
“Q. Do you recall the making of a deed to you by your brother E. B. Watson and your brother J. F. Watson of their interest in your father’s lands?
“A. I do.
“Q. Will you state how that deed came to be made?
“A. Yes. I was in Portland, and my brother E. B. Watson said he would make over his part of the estate to me for taking care of my mother, and I said at the time, ‘Perhaps Johnny won’t like it,’5 and he said, ‘That don’t matter.’ He said, ‘J. F.,’ that is my brother Finley, ‘and I have talked it over, and we will make it over to you, and not to Johnny; you have taken care of Mother, and it is not right.’ And he spoke for my brother Finley, too. I did not speak to J. F. about it.
‘ ‘ Q.
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JOHNS, J.
James Watson was a pioneer of Douglas County, and his sons and daughters became prominent in the history of the state. At the time of his death he was the owner of about 900 acres of land in Douglas County, the south line of which for a distance of about three miles was on the east fork of the North Umpqua Eiver. About 90 acres, known [386]*386as farm land, were on the river bottom. The remainder was hillside land covered with some brush and a little timber, more or less rocky, without water, and about its only value was for grazing purposes. After the death of the father, his widow, the defendant son, and the daughter Florence, who was ■ then about 8 years of age, continued to reside upon the old home place. The rest of the family were more or less scattered. It appears that during that period the land was not very productive, and outside of stock range it was. not of much value. To provide for the care, comfort, and maintenance of their mother in her old age and the daughter Florence in her youth, the idea was conceived of entering into a contract with the defendant for that purpose, in consideration of which the remaining heirs would convey to him their interest in the lands. This led to the preparing of the agreement of September 24, 1883, which was actually signed by D. L., J. F., E. B., Florence I., and R. J. Watson, and S. H. Hazard, six of the heirs out of the ten. But it was never signed by the defendant, with whom it was purported to have been made. It specifically names the' nine brothers and sisters and their wives and husbands as “heirs of the estate of James Watson, deceased, of the first part, and John L. Watson, of the second part,” qnd further recites:
“That the parties of the first part hereby bargain, sell, and agree to convey uiito John L. Watson, the party of the second part, all of that part of the lands owned by James Watson in Douglas County, Oregon, at the time of his death which are situated on the south side of the east fork of the North Umpqua River, upon the terms and conditions following: Said lands are subject to the dower of Emily A. Watson, widow of the said James Watson, and the sole interest which the parties of the first part have or own [387]*387therein is as heirs, either direct or indirect, of the said James Watson.”
This contract was dated September 24, 1883. The widow, Emily A. Watson, died in April, 1896. The daughter Florence married A. M. Crawford October 22, 1885. At the time the contract was signed the widow, the daughter Florence, and the defendant son were all living upon and in the actual possession of the lands; that is to say, there was no change of possession, and the defendant did not actually enter or take physical possession under the contract. From the wording of the contract it is apparent that it was then contemplated that it should be signed by all of the nine brothers and sisters, and that upon the performance of the terms and conditions therein stated the defendant should have a conveyance of all of their respective interests and become the sole owner of the property. Three of the heirs never did sign the contract, and it was never executed by th'e defendant as the party of the second part. In other words, upon the present theory of the defendant, he now claims and seeks the specific performance of a contract for a Conveyance of an undivided six-tenths interest for tlie same identical consideration that he was to pay for a nine-tenths interest in the property. Under the contract, of which he now seeks specific performance, he would acquire a six-tenths interest only, whereas, if the contract had been signed by all. the parties as originally intended, for the same consideration he would have acquired a nine-tenths interest. Under the contention' which he 'now makes, defendant was entitled to a deed and specific performance upon the death of his mother. By the terms of the writing the provision for the care and support of Florence terminated with her marriage to A. M. [388]*388Crawford in October, 1885, and as to the mother it ceased with her death in 1896. By the defendant’s own testimony, he nSver claimed that he had any right to a specific performance until at least six years after the death of his mother. After the marriage of Florence, the mother lived with the defendant for about one year, and the testimony is conclusive that during the last nine years of her life she lived with her daughter Florence.
1. Assuming that the contract had been duly executed and was in force, to entitle the defendant to a specific performance it was his duty to take care, of and support his mother during all of her natural life. There is no claim or pretense that he in any manner supported or took care of her during the last nine years preceding her death, and there is testimony tending to show that at times she assisted him during that period. The claim of the defendant is not supported by the evidence. His own testimony is evasive, indefinite and uncertain. As we analyze the record, the signed contract was never legally delivered, and it was never the purpose or intent that it should be in force and effect until it was signed by all of the nine heirs, and three of them never did sign. Although it may have created a charge or lien upon the respective interests of the heirs in the property for the use and benefit of the mother and the daughter Florence for their care and support, the writing itself, as between the parties to it, was unilateral. The defendant did not promise, undertake or agree to do anything, and as to him it could not be enforced. If it meant anything, it was the duty of the defendant to care for and support his mother during her natural life, without any charge or claim against her or her estate. When she died he was ap[389]*389pointed as administrator of her estate, and later filed a verified claim against it as follows:
“On or about 1876, to and including the year of on or about 1898, paid cash to Mrs. E. A. Watson, above deceased, for her support and the support of her family at divers times and in divers sums of money amounting in the aggregate to the sum of $800.”
And for one thing and another he presented a claim against her estate amounting to $2,515.40. It is true that this whole claim was later compromised for about $300, but the fact remains that he did verify and file a claim of $800 against the estate,of his mother for her care and support during the period covered by the alleged contract.
The testimony is clear and convincing as to how Florence Crawford acquired all of her interest. For the Hazard deed of one tenth she paid $400 in money. As stated, the mother lived with Florence the last nine years of her life.
“Q. Do you recall the making of a deed to you by your brother E. B. Watson and your brother J. F. Watson of their interest in your father’s lands?
“A. I do.
“Q. Will you state how that deed came to be made?
“A. Yes. I was in Portland, and my brother E. B. Watson said he would make over his part of the estate to me for taking care of my mother, and I said at the time, ‘Perhaps Johnny won’t like it,’5 and he said, ‘That don’t matter.’ He said, ‘J. F.,’ that is my brother Finley, ‘and I have talked it over, and we will make it over to you, and not to Johnny; you have taken care of Mother, and it is not right.’ And he spoke for my brother Finley, too. I did not speak to J. F. about it.
‘ ‘ Q. And that is the reason for making of the deed, was it?
“A. Yes, sir.
“Q. Did they say anything, at that time, that you remember, about this old contract?
[390]*390“A. No, sir, I did not hear anything about that at all, as I remember now.
“Q. Mrs. Crawford, has that, since the death of your mother, or even before her death, ever been recognized by you in any way as being in existence, or being a binding contract?
“A. I always considered the property mine, and I am sure until late years my brother did too.”
2, 3. It is true, as appellant contends, that “Specific performances may be granted at the suit of one who did not sign the contract, against the other party who did sign it.” That was held by this court in Flegel v. Dowling, 54 Or. 40 (102 Pac. 178, 135 Am. St. Rep. 812, 19 Ann. Cas. 1159). But in the instant case the writing was never signed by all the parties in interest, and without such signing it was never intended to become valid and binding. It is true that the defendant later received deeds from two of his brothers for their respective interests, and that he now has the record title to a three-tenths interest. As to the conveyance from one of them, the defendant testifies that the consideration was the cancellation of a valid and existing debt due and owing him from his brother.' As to the other, he testifies that the consideration was a mutual exchange of properties. Both transactions are strong evidence that the defendant did not then, and never did, intend to claim or rely upon a specific performance of the alleged contract. The record discloses that the defendant failed and neglected to keep and perform the material provisions of the alleged contract, and after a lapse of more than 20 years he is not entitled to its specific performance.
We approve the findings of the Circuit Court as to the ownership and their respective interests; that is to say, that the Lexington Investment Company is [391]*391the owner of an undivided one-tenth, interest; Florence W. Crawford an undivided four-tenths interest; the eight Hamilton heirs ah undivided one-tenth interest; the defendant John L. Watson an undivided three-tenths interest; the six children of D. L. Watson, an undivided one-tenth interest, subject to the dower right of Laura L. Watson. Strong testimony was offered upon the part of the plaintiffs tending to show that’ the land could not be fairly divided, and that a division would be prejudicial to the respective owners. The trial court so found, and for such reason decreed a sale and a division of the proceeds. Here, again, the testimony on the part of the defendant is not clear or convincing. There is no merit in the defense.
After a careful reading of the record, the decree is affirmed. Affirmed.
McBride, C. J., and Brown and Bean, JJ., concur.