Sower's v. Weaver

Mr. Justice Gordon delivered the opinion of the court, That a parol gift, from a parent to a child, properly executed by possession and improvement, is valid, notwithstanding the Statute of Frauds arid Perjuries, will be found to be the settled law of this state [268] since the case of Syler v. Eckhart, 1 Binn. 378. The question is generally one of execution. As in parol sales where the performance has been carried so far, or is of such a character as to make compensation difficult or impossible, the contract is exempted from the operation of the statute. Such will also be the case with a gift where, in pursuance thereof, possession has been taken and valuable improvements have been made; this a fortiori, where this possession has been undisturbed for a great length of time or where the improvements have added lai-gely to the value of the property. Time is always a powerful factor in questions of this kind. Equity is loth to undo a gift or contract at the instance of one who has neglected to move for its rescission until the passing years have grafted new equities upon the transaction, until the donee has grown old and has spent the vigor of his age and the prime of his manhood in the use and improvement of a property long regarded as his own. We pass to the consideration of the case before us. Was there sufficient evidence of a clear and distinct parol gift from George Sower to his son-in-law and daughter, and of its execution on their part, to submit to the jury ? When the case was before us on a former occasion there was not such evidence. There was but the testimony of Weaver, which was at all distinct and positive as to the character of the gift; it was but meagerly sustained by coroborative evidence, and it was positively contradicted by George Sower, the alleged donor. Under these circumstances, we held, that the defendant had not made out such a case as would relieve him from the operation of the statute. As, however, the case is now presented to us we cannot say that the court did wrong in submitting it to the jury. It is true the testimony of Weaver and his wife is exactly what it was before, but the corroboration is much stronger and more precise, and the contradiction of the evidence of George Sower is so positive and complete as to render it of little worth. What we have to consider is not whether the defendant has made out such a case as would entitle him to a decree of specific performance, for it seems to be pretty well settled, in this state at least, that equity will not enforce a contract the consideration of which is only natural love and affection, but whether he has shown enough to prevent the disturbance of his possession by Sower’s legal title. As we have seen, for this purpose, a gift, accompanied by possession, is sufficient. Now, turning to the evidence, we have, firstly, that of Weaver himself, which is the most distinct and positive. He says: “ In the fall of the year 1845, before I went on this land, George Sower, Sr., and I went to look at it. I went up with George Sower and my wife to look at the place to put the buildings. To George Sower I said, it was hard for me to build there unless I knew what I was to do it for. He said he did give it to me and my wife for our own; arid with that understanding I went into possession. Then, in pursuance of that conversation, I [269] dug the cellar and took possession and put up the barn and put up the garden fence and made fence to keep the cattle out and did work and had more than I could do.” It would seem, also, from the evidence, that, in addition to the improvements above mentioned, he planted fruit and shade trees and added considerably to the fertility of the soil by manuring and cultivation ; that from and including the year 1845 the property has been assessed in his name, and during all this time, now some thirty odd years, he has paid the taxes, and, further, he has had the buildings insured in his own name. That the above statement of facts, if admitted, makes out a complete defence ought not to be doubted, for it contains every element necessary to constitute a valid parol gift. What remains, then, is to ascertain if these statements of Weaver are so corroborated by. such other facts and circumstances as, taken together, are equivalent to another credible witness. We have, then, in addition to the defendant’s long and undisturbed possession, a powerful circumstance in itself, the testimony of George Slyder, who says that in the year 1845, Gentzler, the assessor, in the presence of the defendant, inquired of Sower to whom he should assess this land now in suit, and that he, Sower, answered that it should not be assessed to himself but to Weaver; that he had given it to “ Hen and his wife,” they could do with it what they pleased. This declaration, made as it was when the parties were face to face, accompanied by the act of the assessment of the land to the defendant, by the direction of the one and the assent of the other of the parties, was not merely corroborative, but direct, independent and primary evidence of the gift. Moreover, there are the repeated declarations of Sower, from time to time, after Weaver was in possession, that he had given the land to him and his wife. He so said to David Meyers, the assessor for 1846, he, Sower, being assistant assessor for that year, also to Solomon Gross, another assessor, directing in each instance, the assessment to be made to the defendant. To Peter Benedict, after stating that he had given the land to Henry Weaver and his wife, he said he had brought the ejectment only at the urgent solicitation of his children John and Barbara, and this because of the increase in the value of the land by reason of the discovery of iron-ore upon it. Like declarations were made to John Brougher, George F. Harbolt, Daniel Baker, Jacob Lighty, James Marshall and Elizabeth Huntz. It is true a few of these witnesses speak of the gift as to Elizabeth, the wife alone, nevertheless it is all corroborative of the testimony of Weaver and consistent with it, for it all goes to show a continued recognition of the donation made in 1845, and, as it was intended principally for the benefit of Mrs. Weaver, it is not remarkable,that he should sometimes omit her husband’s name when speaking of it. From all this we do not see how the court could have refused to submit this ease to the jury. So great is the array of testimony in support and corroboration of the defence that, [270] if a parol gift of land can be made out at all, it would seem to have been so done in this instance. The assertion of ownership by Sower in 1853, by the sale of one-fourth of an acre of this land to the school directors of Washington township, was, undoubtedly, significant and important, but we cannot say that it was conclusive, and we think it was properly left, under the explanation, of the defendant and his wife, to the jury. Judgment affirmed. Sharswood, J., dissented.