Forward v. Armstead

GOLDTHWAITE, — The opinion here will be confined to an examination of the principal point, as the decision on that will be decisive of the suit. It will be seen that the promise by the father to give his son the Turkey Creek plantation and slaves, is stated in the bill as a contracL, of which the consideration is asserted to be the breaking up in North Carolina, and the expense and trouble of removing to Alabama. The proof, if it can be said to sustain the allegations of the bill even as to the form of a contract, has not the slightest effect in proving the substance of one. It is entirely evident that there was no subject or thing to be contracted for. The son was not bargaining for the plantation and slaves, nor was the father contracting for the son’s removal. In other words, the slaves arid plantation were not to be paid as the consideration for the removal, nor was the removal the cause which induce^ the promise to make the gift. It would scarcely be contended, if the gift had been made, and the question between the complainant and defendants was now, as it would be in case of the father’s intestacy, whether the plantation and slaves were an advancement to the complainant, that the selling out in North Carolina and removal to Alabama would change the gift into a purchase, and thus let him in to an equal division of the remaining estate; and yet the same principle obviously must prevail in the one, as in the other case. As a [127] contract, the facts here do not constitute any thing near so strong a case as in Kirksey v. Jones, 8 Ala. Rep. 131; where we held, a letter by one to the widow of his brother residing 60 miles distant, promising that if she would come and see him, he would let her have a place to raise her family, was a mere gratuitous promise, although in consequence of the letter, she broke up and removed. On the same principle, the specific performance of a gift of lands was refused in Reed v. Van Arsdale, 2 Leigh, 569; though one of the judges there was of the opinion that if the promisee had incurred necessary expense in the removal, that performance should have been enforced. It seems to us, that the expense incurred in a removal under such inducements, does not furnish the test whether the engagement is to be considered a contract, instead of a gratuity, because expense, or at least trouble, which is equivalent to it, must always be incurred; but as we have before indicated, the test is, whether the thing is to be paid in conside-* ration of the removal, instead of being given from motivesj of benevolence, kindness, or natural affection. 2. There being in our judgment no ground to consider the promise in the nature of a contract, we shall next consider, whether a promise to make a gift will be enforced, when the subject of the gift is land, and the party has made improvements on it, after being put in possession by the donor, but - the gift is incomplete from the omission of the donor to execute a conveyance. We have no decisions bearing directly on this proposition, except, on the one hand, sustaining the general proposition that equity will not enforce even a covenant which does not rest on a valuable or meritorious consideration; [Darlington v. McCook, 1 Leigh, 36;] and on the other, that it will do so, when there is a contract, although that, in the first instance, may be invalid for the want of wri-ing, but is afterwards partly performed. It is evident neither of these propositions are sufficiently broad to let in, or refuse relief, in this particular case; for, as we have shown, there is no contract, and it seems to be sufficiently proved the complainant was let into possession, and made some improvements, or at least amelioration of the land as donee\ Another principle may seem to have more bearing. It is\ [128] generally recognized, where one in possession under color of title, makes improvements which are known to the true owner, and he conceals the facts that he asserts a paramount title, he will not afterwards be permitted to recover the land without making compensation for the improvements. [1 Story’s Eq. § 388, and cases there cited.] This principle, we appre--hend, can have no application to a mere donee, unless he has been induced to make the improvements under the promise of' a conveyance, (whether even then it would apply is a matter as to which we express no opinion,) for until then, it cannot be said that a fraud is practised on him ; and it was his own folly to improve lands which he knew in point of law to belong to another, and when the uncertainty with regard to the title, could be determined at once by asking for a conveyance. We have preferred to consider the case in this mode, with-fout reference to the nature or value of the improvements, either upon the identical lands, or upon those which the complainant afterwards purchased for a residence, as appurtenant to the plantation. In any point of view, we are of opinion the bill- should be dismissed. Decree reversed, and bill dismissed.