Oxley v. Tryon

Dillon, Oh. J. Mnron: correota°y oouye1™’ auoeWe would be quite willing to reverse tbe decree if there was any legal principle upon which a reversal could rest. The deed was made when the defendant was under age, and was a nullity, certainly as to land it did not convey. The plaintiff cannot base their right to relief upon the defendant’s alleged promise to make a corrected deed, for this promise was without consideration. There was no consideration for it at the time. As the land intended to be described in the deed was a gift, the promise to rectify this deed can derive no aliment to support it from the ..original transaction. The transaction stands simply as ,'an intended, but uncompleted, gift. We find no warrant in the testimony for the plaintiffs’ position, that the deed wás ma&é-i;<5 settle a dispute between the defendant and his sister, and thereby save litigation. The pl^jidiffs or- their ancestor, have taken no actual possess^» of the land, following it by an expenditure of smioóS^vr labor thereon, and hence there is no ground of this character upon which to base a claim for a deed. They paid taxes on the land from 1862 to 1866, inclusive, but the amount has been tendered back by the defendant, and is in court for the plaintiffs. The plaintiffs make the point, that, as the defendant’s deed recites a consideration of one dollar and other good considerations, that evidence is not competent to show that in fact no consideration was paid. If the plaintiffs were standing upon this deed, and the defendant was seeking to defeat it by showing it to be without consideration, plaintiffs position would, at least aside from the question of the grantor’s minority, be well taken. The testimony which was received without objection, clearly shows that the land now claimed by the plaintiffs was intended to be a gift, purely so; and that no valuable [97] consideration was paid. If, however, such testimony had been objected to, it would, in such a suit as the present, have been competent. The minority of the defendant when the deed was made, and the want of consideration, the want of actual possession followed by an expenditure of money or labor are insurmountable barriers to the relief demanded. Story’s Eq. Jurisp. 787, 793 a; Moore v. Parson, 6 Iowa, 279; Holland v. Heasley, 4 id. 222, and cases cited; Banks v. May’s Heirs, 3 A. K. Marsh. 435; Dawson v. Dawson, 1 Dev. Eq. 93; Pennington v. Gittings, 2 Gill. & J. 208; Stewart v. Stewart, 3 Watts, 253.