Stewart v. Stewart

A parol gift of land from a father to a son is as much affected by the statute of frauds as if it were'to a stranger; and to take it out of the statute, there must be a delivery of possession and the expenditure of money or labour on the land in consequence of the gift.

WRIT of error to the court of common pleas of Alleghany county. This was an action of ejectment for twelve acres of land, brought by Sarah Stewart, the defendant in error, against Robert Stewart and another, the plaintiffs in error. Title was admitted to have been in John Stewart deceased, the husband of'the plaintiff and father of the defendants below, for the whole tract of .which the ground in dispute is a part. The plaintiff below then gave in evidence the will of John Stewart deceased, dated the 12th of February 1825, and proved the 3d of September 1825, by which he devised to the plaintiff all his real estate to hold during her life. The defendants below then gave evidence showing that Robert Stewart had received the ground as a-parol gift from his father, which his father, for a number of years previous to his death, uniformly acknowledged to have made. The precise period at which the gift took place, and whether the donee entered into possession before or after the date of the gift, did not appear. But after the gift was made, Robert Stewart put.improvements to the value of 50 dollars on the house which stood upon the ground, whether at his own expense or at that of his father, was disputed. From 1817 till the death of his father.in 1825, during a large portion of which time he held the ground in dispute by virtue of the gift, he carried on the whole farm for his father as a cropper, allowing to his father two-thirds of the products of the farm. The plaintiff then proved that the father, for a year or two previous to his death, bad rented the house and garden belonging to the ground in dispute, and that up to his death the ground was never assessed in the name of Robert Stewart, but that the whole tract embracing it was assessed in the name of the father. The court below charged, that the parol gift, under which the defendant below claimed, was void under the.statute for prevention of frauds and perjuries, and that the consideration of natural love, accompanied by delivery of possession, were not circumstances that would exempt the case from, or vary, the operation of the statute. Error was assigned to this charge.