Wiener v. Stephani

Russ, Judge, delivered the opinion of the court. This is a petition to enforce a parol gift of a lot in Cárondelet to Mrs. Wiener from her father, the defendant. The plaintiffs [566] claim that in 1860 a gift of a lot 50 by 150 feet, on corner of Main and Quincy streets, was made, upon condition that they would build and live upon it; that they built upon the back end of the lot, where they have ever since resided, and have occupied the front as a garden. The defendant denies the gift or the possession of any portion, except the part upon which the building was erected, which he has conveyed to Mrs. Wiener. It is undisputed that after the building was erected a fence was run around it, inclosing 38 by 50 feet; that the deed for that parcel was received by Mrs. W., though she testifies that she did not examine it, and supposed that it was for the whole lot; but upon all other facts there is a glaring conflict of testimony. We can not presume anything in favor of a gift, although upon family considerations, further than it is followed by actual and unequivocal possession and improvements. (Tyler v. Eckhart, 1 Binney, 378.) It is very doubtful, from the evidence, who had possession of the garden, whether Mrs. Stephani, or her daughter, Mrs. Wiener ; though one witness testifies that they worked it in common. In this conflict the presumptions are all in favor of the owner, and against the gift. The judgment of the Circuit Court against the plaintiffs will therefore be affirmed. The other judges concur.