Miller v. Hartle

The opinion of the court was delivered, by Thompson, J. The plaintiff claims the land in dispute through an alleged parol gift to her deceased husband by his father. A faint attempt was made to prove a deed executed as well as possession delivered to the son. Michael Zellers, who had owned and sold the property, conveyed it to Henry Miller without affix or designation. This happened to be the name of both father and son, and the deed being in the possession of the son at his death, it was claimed below that this possession, in connection with declarations made at sundry times to his neighbors by Henry, the father, that he had bought the land for the son, that he was going to set him up on it, and make him a business man, that he meant it as his share, and the like, were evidence that the deed from Zellers was actually made to Henry the younger, and delivered to him in pursuance of the intention. But this theory was dispelled by Zellers, whose testimony clearly proves that he made and caused the deed to be delivered to Henry the elder, who had purchased and paid for the land, and that Henry the son’s name was not mentioned in the contract. How Henry came by the deed was fully explained; but this was of little consequence after the proof by Zellers. The possession of this deed by the son was no evidence of title. On this point the jury found in accordance with Zellers’s testimony as to the identity of the person to whom the deed was made, and this settled the legal title to be in Henry Miller the elder, and left the son without a scrap of written evidence of title. Neither the admitted nor rejected testimony, the subjects of [111] the two bills of exception, could have affected the finding on this point. Was it corroborative of a state of facts which, if believed, would establish a parol gift of the land ? We think not, for the very sufficient reason that no competent evidence of such gift was given. The declarations of the father to his neighbors of what he meant to do for his son was not testimony from which a present gift might be inferred: Hugus v. Walker, 2 Jones 178. There was no testimony that anything of the kind was said to the son, nor that he was thus induced by his father to take possession of the property, on the footing of a gift, or that he held exclusive possession of it, or made valuable or any improvement during the fifty-two days he lived after he went into possession. The clearest evidence of a present gift, accompanied by exclusive possession, and valuable improvements, not to be compensated in damages, is necessary to establish such a parol gift as equity will execute between father and son. All this was wanting here, and both the admission and rejection of the testimony was harmless, for by itself it was nothing, and there was not sufficient evidence to go to a jury of a gift with it in or out. It must be borne in mind that it is for the court to say whether the evidence is sufficient to raise an equity in the party claiming the execution of a parol contract or gift, and the jury to say whether or not the testimony is true if it be thought sufficient if true by the court. These are the several duties of the court and of the jury in such a case. We think the entire testimony, as well that offered and rejected as that admitted, was insufficient to establish a gift with possession delivered pursuant to it, such as would call in equity for an execution in consideration of improvements made. Everything was wanting to constitute-it a case for execution; namely, the gift — the possession delivered in pursuance of it — the acceptance and improvements. For these reasons the offered and rejected testimony, if wrongly treated, resulting in no injury, we do not reverse for it. Nor for that alleged to have been erroneously admitted — we venture to think it is not evidence, but^ it did no harm as the case appeared. There was no error in the answer of the court to the plaintiff’s 2d point, and, without adding more, the judgment is affirmed.