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 check upon the mere invention of the sale.

In our first endeavor 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, being taken as true, it does not make out such a case as is entitled to stand as an exception to the statute: Ludwig v. Leonard, 9 Watts & S. 49; Kelsey v. Murray, 9 Watts, 109; Charnley v. Hansbury, 13 Pa. St. 21; Moore v. Small, 19 Id. 461; Rankin v. Simpson, Id. 471 [57 Am. Dec. 663]. 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 Id. 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 names 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: Mehaffy v. Share, 2 Pa. 365; Hack v. Stewart, 8 Pa. St. 213; Bash v. Bash, 9 Id. 262; Lantz v. Frey, 14 Id. 201; Sanders v. Wagonseller, 19 Id. 251; Lantz v. Frey, Id. 366; McCue v. Johnston, 25 Id. 308; Hugus v. Walker, 12 Id. 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 the 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 Pa. St. 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. Some 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 a while, 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 back; 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, while 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 one hundred and three acres and Kilgore ninety-one.

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 Iwould not have made another afterwards in connection 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.

The 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 life-time, 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: Jones v. Peterman, 3 Serg. & R. 546 [8 Am. Dec. 672]; Eckert v. Mace, 3 Pa. 365, in note; Robertson v. Robertson, 9 Watts, 42; Goucher v. Martin, Id. 109; Rankin v. Simpson, 19 Pa. St. 471 [57 Am. Dec. 663]; Phillips v. Thompson, 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: McClure v. McClure, 1 Pa. St. 379; McDowell v. Simpson, 3 Watts, 138 [27 Am. Dec. 338]; Stewart ▾ Stewart, Id. 255. They are no evidence of the gift itself, and may be fully accounted for on the expectation of it. They are estimated at two thousand dollars; 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 two hundred and fifty dollars. Most of the materials seem to have been got from the place. Much of the work was done by frolics, and fifty dollars 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., dissented.

PAROL GIFT BY FATHER TO CHILD can be established only by clear and convincing evidence: Collins v. Lofftus, 34 Am. Dec. 719; Rucker v. Abell, 48 Id. 406.

PROMISE TO PAY FOR SERVICES RENDERED BETWEEN MEMBERS OF SAME FAMILY will not be presumed: Weir v. Weir's Adm'r, 39 Am. Dec. 487; Williams v. Hutchinson, 53 Id. 301, and note thereto 306, discussing the subje When son may recover for services, see Price v. Price, 34 Id. 608; see note to Johnson v. Hubbell, 66 Id. 773.

WHAT ACTS CONSTITUTE PART PERFORMANCE OF VERBAL CONTRACT SO as to take case out of statute of frauds: See Christy v. Barnhart, 53 Am. Dec. 538, and exhaustive note to same on the subject; see note to Johnson v. Ilubbell, 66 Id. 773.

CITATIONS OF PRINCIPAL CASE.-It was cited to first point in syllabus, supra, in Todd v. Campbell, 32 Pa. St. 252. In Poorman v. Kilgore, 37 Id. 312, that a parol contract to convey land is within the statute of frauds, and cannot be enforced by specific performance. "One who enters as a tenant of the owner is not presumed to hold adversely even after his term has expired. In all such cases, if there is a relation adequate to account for the possession, the law accounts for it by that relation unless the contrary be proved. A party who relies upon a contract must prove its existence; and this he does not do by merely proving a set of circumstances that can be accounted for by another relation appearing to exist between the same parties:" Hertzog v. Hertzog, 29 Id. 469. The rule is settled 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: Shellhammer v. Ashbaugh, 83 Id. 28; Ackerman v. Fisher, 57 Id. 459; Harris v. Richey, 56 Id. 399. In cases of parol sales, where the attempt is to evade the statute of frauds by converting the vendor into a trustee for the vendee by partial execution, it has repeatedly been held to be the duty of the court to reject all evidence of a verbal contract, if, in the judgment of the court, when taken as true, it does not make out such a case as would induce a chancellor to decree a conveyance: McBarron v. Glass, 39 Id. 135; Washabaugh v. Entriken, 36 Id. 517.

Cox v. Cox.

[26 PENNSYLVANIA STATE, 375.]

CLAIM OF EQUITABLE TITLE TO LAND BY PAROL GIFT is repugnant to and inconsistent with a claim of equitable title to the same land arising from the payment of purchase money, and a defense setting up both such titles will be rejected.

EQUITY DOES NOT LEND ITS AID TO EXPERIMENTS ON LEGAL TITLES in favor of those who can present no distinct and consistent claim. DEFENDANT MUST ELECT BETWEEN TWO CONTRADICTORY DEFENSES, and evidence should be permitted only in support of the one on which he determines to rely.

POSSESSION OF LAND BY SON with legal title in his father does not tend to prove an equitable title in the son, either by reason of a parol gift or payment of purchase money.