The opinion of the court was delivered by
Lowrie, J.
Wherever we notice a change in the administration of legal principles, gradually progressing for a considerable period and under a series of judges, it may be very safely assumed that it has a much more legitimate foundation than that of judicial arbitrariness. This is illustrated by the practice under the statute of frauds and perjuries: and we very naturally ask, how happens it that any exceptions at all have been made to a statute so [370]*370general and so peremptory in its terms, and that judges are now so much inclined to restrict the sphere of those exceptions ?
However we may define that portion of the law which courts of equity take as their guide, it is very apparent that the equitable exceptions that have been made to this statute have gone upon the principle of correcting the law in that wherein it was, by reason of its universality, defective. They proceed upon the assumption that our experience furnishes no universal rules, either for legislation or jurisprudence, but only general ones. Though we give to laws the form of universality, yet they must always be subject to modification or exception, when a new experience arises to which they are not jdstly adapted. To regard them otherwise would be to treat them as mere'arbitrary rules, and not, as they ought to be, a generalization and improvement of the results of our social experience. The demands of natural justice and the nature of our minds impose upon us the necessity of excepting out of the letter of the law those cases that are not equitably within its intention, and this necessity finds its expression and its measure in many accepted rules of interpretation.
The English statute of frauds and perjuries was passed in 1676, and was intended to- change the common law theretofore existing, by which title to land could be passed by livery of seisin without writing; and to get clear of the frauds, perjuries and subornation of perjuries, and the uncertainties of titles that had grown out of the old law. But as the customs of the country can never be suddenly and entirely broken down even by an act of Parliament, it was natural that many cases should arise, founded on the old customs, where great injustice would be done unless the statute should, receive an equitable interpretation; and the presumption that the legislature did not intend any innovation on the common law, further than the case absolutely required, came in aid of such an equitable interpretation as would ease off the severity of the operation of the new enactment. But exceptions founded on this principle must naturally be but temporary expedients, which must die away when the new law itself has become part of the general customs of the country.' We might say that there is a natural provision for this sort of indulgences, in the fact that no man is .perfect enough to bear a strict application of rules, and very few hearts are hard enough to enforce, without flinching, the letter of the law when it results in upholding injustice.
When the settlement of Pennsylvania commenced, the English statute had not broken down the old customs relative to passing titles to land, 'and we did not at first adopt it as part of our law: 1 Dall. 1. And when our statute was passed in 1772, of course it was necessary to treat the old customs of granting lands with the indulgence already indicated. And ás, with us and on account of the small value of our lands, our customs in relation to convey[371]*371anees were more loose than they had been in England — 1 Yeates 220, 500 ; 2 Id. 124, 379; 3 Binney 187 — this indulgence here was greater than there. But here, as there, it was evidently temporary, and in its very nature it presented a caution against its own permanence.
This temporary reason influenced also the recognition of the statutes providing .for the recording of titles, and for the limitation of actions and of liens of judgments; but it ‘has answered its purpose, and now the only difficulty is to know how to fall back upon those essential exceptions to which all laws are, in their very nature, subject; because-no people can bear an entirely literal and ■unbending application of any rule of law. We can make this regression intelligently only by carefully noticing the experience of the past, and not by ignoring and rudely rejecting all the modifications with which the statute has been applied in practice. If we attempt to gain, at one bound, our true position, we shall probably light beyond it. Even in seeking the correction of admitted error, our experimentations must be grounded on our experience.
A delivery of possession in pursuance of a verbal contract is now regarded as essential to the enforcement of if; but there is a plain reason why it ought not to be treated as securing that result, or as having as much force now as it. once had.. When livery of seisin was at common law a sufficient form of transferring title to land, it was- an open and notorious act, performed in the presence of the neighbours, accompanied by the symbolical delivery of the turf or twig, and the -declaration of the quantity of the estate granted. But even this solemn investiture was so open to frauds and perjuries that it called for the correction of the statute requiring the contract to be put into writing. Now, that common law form has worn out, and delivery takes place without any form at all, almost always by a mere entry on a permission, express or implied; and thus the publicity and form of the delivery no longer avails as a cheek upon the mere invention of the sale.
In our first endeavour to administer these equitable exceptions through the instrumentality of a common law trial, we very often failed by reason of our want of skill in applying such remedies in a form so unusual. Very often the law and the facts were committed to the jury, and out of them they made a general verdict as best they could; but experience has shown that their mental training was not at all of a kind to enable them to thread their way through all the complications of such questions, and that generally they cut the knot, and decided each case according to their feelings, and not according to the laws by which titles to land are regulated. This experience has forced upon the courts a more careful study and application of equity practice, and a consequent rejection of all the evidence of a verbal contract, if, [372]*372being taken as true, it does not make out such a case as is entitled to stand as an exception to the statute: 9 W. & Ser. 49; 9 Watts 109; 1 Harris 21; 7 Id. 461, 471. This improvement in the practice tends to the security of written titles, even if the exceptions to the principle of the statute remain. In the case of Brawdy v. Brawdy, 7 Barr 157, the judge who tried the cause heard the evidence of the verbal contract, and then withdrew it all from the jury as being entirely insufficient to make out the case, and this practice was expressly approved, though this does not very clearly appear in the report of the case, and not at all in the syllabus.
We may notice still another principle of law that is applied very beneficially to restrain the exceptions to the statute, and which is of especial importance in this case, though its application is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural for children to work for their parents even after they arrive at age, that the law implies no contract in such cases.
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The opinion of the court was delivered by
Lowrie, J.
Wherever we notice a change in the administration of legal principles, gradually progressing for a considerable period and under a series of judges, it may be very safely assumed that it has a much more legitimate foundation than that of judicial arbitrariness. This is illustrated by the practice under the statute of frauds and perjuries: and we very naturally ask, how happens it that any exceptions at all have been made to a statute so [370]*370general and so peremptory in its terms, and that judges are now so much inclined to restrict the sphere of those exceptions ?
However we may define that portion of the law which courts of equity take as their guide, it is very apparent that the equitable exceptions that have been made to this statute have gone upon the principle of correcting the law in that wherein it was, by reason of its universality, defective. They proceed upon the assumption that our experience furnishes no universal rules, either for legislation or jurisprudence, but only general ones. Though we give to laws the form of universality, yet they must always be subject to modification or exception, when a new experience arises to which they are not jdstly adapted. To regard them otherwise would be to treat them as mere'arbitrary rules, and not, as they ought to be, a generalization and improvement of the results of our social experience. The demands of natural justice and the nature of our minds impose upon us the necessity of excepting out of the letter of the law those cases that are not equitably within its intention, and this necessity finds its expression and its measure in many accepted rules of interpretation.
The English statute of frauds and perjuries was passed in 1676, and was intended to- change the common law theretofore existing, by which title to land could be passed by livery of seisin without writing; and to get clear of the frauds, perjuries and subornation of perjuries, and the uncertainties of titles that had grown out of the old law. But as the customs of the country can never be suddenly and entirely broken down even by an act of Parliament, it was natural that many cases should arise, founded on the old customs, where great injustice would be done unless the statute should, receive an equitable interpretation; and the presumption that the legislature did not intend any innovation on the common law, further than the case absolutely required, came in aid of such an equitable interpretation as would ease off the severity of the operation of the new enactment. But exceptions founded on this principle must naturally be but temporary expedients, which must die away when the new law itself has become part of the general customs of the country.' We might say that there is a natural provision for this sort of indulgences, in the fact that no man is .perfect enough to bear a strict application of rules, and very few hearts are hard enough to enforce, without flinching, the letter of the law when it results in upholding injustice.
When the settlement of Pennsylvania commenced, the English statute had not broken down the old customs relative to passing titles to land, 'and we did not at first adopt it as part of our law: 1 Dall. 1. And when our statute was passed in 1772, of course it was necessary to treat the old customs of granting lands with the indulgence already indicated. And ás, with us and on account of the small value of our lands, our customs in relation to convey[371]*371anees were more loose than they had been in England — 1 Yeates 220, 500 ; 2 Id. 124, 379; 3 Binney 187 — this indulgence here was greater than there. But here, as there, it was evidently temporary, and in its very nature it presented a caution against its own permanence.
This temporary reason influenced also the recognition of the statutes providing .for the recording of titles, and for the limitation of actions and of liens of judgments; but it ‘has answered its purpose, and now the only difficulty is to know how to fall back upon those essential exceptions to which all laws are, in their very nature, subject; because-no people can bear an entirely literal and ■unbending application of any rule of law. We can make this regression intelligently only by carefully noticing the experience of the past, and not by ignoring and rudely rejecting all the modifications with which the statute has been applied in practice. If we attempt to gain, at one bound, our true position, we shall probably light beyond it. Even in seeking the correction of admitted error, our experimentations must be grounded on our experience.
A delivery of possession in pursuance of a verbal contract is now regarded as essential to the enforcement of if; but there is a plain reason why it ought not to be treated as securing that result, or as having as much force now as it. once had.. When livery of seisin was at common law a sufficient form of transferring title to land, it was- an open and notorious act, performed in the presence of the neighbours, accompanied by the symbolical delivery of the turf or twig, and the -declaration of the quantity of the estate granted. But even this solemn investiture was so open to frauds and perjuries that it called for the correction of the statute requiring the contract to be put into writing. Now, that common law form has worn out, and delivery takes place without any form at all, almost always by a mere entry on a permission, express or implied; and thus the publicity and form of the delivery no longer avails as a cheek upon the mere invention of the sale.
In our first endeavour to administer these equitable exceptions through the instrumentality of a common law trial, we very often failed by reason of our want of skill in applying such remedies in a form so unusual. Very often the law and the facts were committed to the jury, and out of them they made a general verdict as best they could; but experience has shown that their mental training was not at all of a kind to enable them to thread their way through all the complications of such questions, and that generally they cut the knot, and decided each case according to their feelings, and not according to the laws by which titles to land are regulated. This experience has forced upon the courts a more careful study and application of equity practice, and a consequent rejection of all the evidence of a verbal contract, if, [372]*372being taken as true, it does not make out such a case as is entitled to stand as an exception to the statute: 9 W. & Ser. 49; 9 Watts 109; 1 Harris 21; 7 Id. 461, 471. This improvement in the practice tends to the security of written titles, even if the exceptions to the principle of the statute remain. In the case of Brawdy v. Brawdy, 7 Barr 157, the judge who tried the cause heard the evidence of the verbal contract, and then withdrew it all from the jury as being entirely insufficient to make out the case, and this practice was expressly approved, though this does not very clearly appear in the report of the case, and not at all in the syllabus.
We may notice still another principle of law that is applied very beneficially to restrain the exceptions to the statute, and which is of especial importance in this case, though its application is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural for children to work for their parents even after they arrive at age, that the law implies no contract in such cases. And it is so natural for parents to help their children by giving them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. It is so entirely usual to call certain books, or utensils, or rooms, or houses, by the name of the children who use them, that it is no evidence at all of their title as against their parents, but only a mode of distinguishing the rights which the parents have allotted to the children as against each other, and in subjection to their own paramount right. The very nature of the relation, therefore, requires the contracts 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: 2 Penn. Rep. 365; 8 Barr 213; 9 Id. 262; 2 Harris 201; 7 Id. 251-366; 1 Casey 308; 2 Jones 175. The importance of this rule is very apparent; for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes, growing out of the exceptions which have been allowed to this statute; and how many and how distressing must have been the ruptures of the closest ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of extracting legal obligations out of acts of parental kindness.
The arrangement out of which the present controversy arose is so entirely similar in its spirit and intention to that which appeared in the case of McClure v. McClure, 1 Barr 376, that it ought to have been disposed of in the same way. This plaintiff had one son, Jacob, and one daughter, married to the defendant. [373]*373Some nine years before the arrangement in controversy, he had given his farm to his son and son-in-law to farm on the shares, they giving him two-fifths of the produce. After they had farmed it awhile, Kilgore moved to another place in the same county, and Jacob then farmed the whole of it on the same terms. In 1844 the plaintiff went to Kilgore to get him to come hack; and here we let the witness Fetter tell the story. The plaintiff said to his son-in-law, “ if he would come back he would make a man of him; he would give him the half of the farm and Jacob the other half; if he would come back and give him, Avhile he lived, the third of all he raised, he should have the farm at his death. Jesse agreed to the proposal. The offer was made three or four times within the year, and Jesse agreed to it every time.”
Jacob testifies that the bargain, as he'calls it, took place at his house on the farm. “ At first he gave us the place to farm, and said we should have it after his death. He told us we should farm and go on, and we should have it and everything, and then after his death we should have it as our own. We were to give him one-third of the produce.” " Kilgore accepted the offer and moved on the land. No division line was fixed in this so-called bargain, but the plaintiff shortly afterwards called a surveyor, and directed him how to make the division, and it was done accordingly, giving Jacob 103 acres, and Kilgore 91.
There is much evidence of the declarations of the plaintiffs; but, while this may corroborate the story of the direct witnesses of the arrangement, it can change nothing of the substance of it as they narrate it. There is much evidence also of the acts and declarations of both Jacob and Kilgore, that show very plainly that they did not regard the transaction as a present and executed gift. But we may lay all this out of the question. It only confirms, as matter of fact, what we assume as matter of law from the story of the two principal witnesses — that the father was merely putting into experimental operation, for the benefit of his son and daughter, an arrangement which he expected to confirm at his death.
The bargain, as it is called, is said to have been made four or five times, and this seems absurd. If the parties had understood it as a contract, they would have lived up to it or accused each other of a breach of it. If they had understood the three or four conversations that Fetter speaks of as a bargain, they would not have made another afterwards in connexion with Jacob. We take this one as the best and only proper evidence of the transaction, because it is the last. “ He gave us the place to farm, and said We should have it after his death.” Here is nothing but a promise to give, and that cannot be enforced. The division line was not settled by a bargain, but the father fixed it as he pleased.
[374]*374The statute forbids verbal conveyances of land, and we presume that the parties did not transgress it. It is not probable that the father was putting his property entirely beyond his control in his lifetime, and the .terms of the arrangement do not require this inference. The delivery of possession does not demand such an inference, for it is perfectly accounted for by the relation of the parties, and by the annual delivery of a share of the produce, as a tenancy from year to year, which is allowed by the statute. If a contract to farm land on the shares, and a delivery of possession under it, can be supplemented by another for an absolute grant, then certainly, as between parent and child, delivery of possession becomes a worthless protection against violations of the statute. Both the terms of this arrangement and the possession under it may readily be'accounted for as founded on other intentions than that of a gift of the land, and therefore the law forbids us to infer that purpose: 3 Ser. & R. 546; 3 Penna. R. 365; 9 Watts 42, 109; 7 Harris 469; 1 Johns., ch. 149.
Some reliance is placed upon the improvements made by the defendant, but, having been made without an actual gift, and only on the expectation or promise of a gift, they do not avert the rule of the statute: 1 Barr 379; 3 Watts 138, 255. They are no evidence of the gift itself, and may be fully accounted for on the expectation of it. They are estimated at $2000; but this gives no idea of the real outlay of the defendant. The only things worth naming are the house and the barn, and the only money proved to have been paid for these, was under $250. Most of the materials seem to have been got from the place. Much of the work was done by frolics, and $50 of the money and some materials were furnished by the plaintiff, and the whole of it was conducted as such matters usually are in the country, when a father is providing a home for his son on his own land.
The fact that, since the arrangement relied on, the plaintiff has married again, and has another child, can have no influence, except as accounting for and justifying the change of his intentions, on the same principle that a will is revoked by marriage or the birth of a child after it was written. On the defendant’s own evidence, the court ought to have instructed the jury that he had no title to the land.
Judgment reversed, and a new trial awarded.
Lewis, C. J., and Black, J., dissent.