
    Tolleson v. Blackstock.
    
      Bill in Equity for Specific Performance of Parol Gift.
    
    1. Specific performance of párol gift of land. — A court of equity will not enforce, against the executors and heirs of the deceased donor, the specific execution of a parol gift of land, where it appears that the donor placed the donee in possession, under the declared intention of giving the land to him, and afterwards requested or verbally directed his executors to execute a deed to him, and that the donee erected some improvements of inconsiderable value.
    Appeal from tbe Chancery Court of Cleburne.
    Heard before tbe Hon. S. K. MoSpaddeN.
    AikeN & Burton, for appellants,
    cited Forward v. Arm-istead, 12 Ala. 124; Evans v. Battle, 19 Ala. 398; Pinclcard v. Pinclcard, 23 Ala. 649 ; 3 Pomeroy’s Equity, § 1405; Irwin v. Bailey, 72 Ala. 79; Olark v, Qlarlc, 122 Ill. 388,
    
      MbeRill & Bridges, Ellis, Baber & JOHNSON, contra,
    
    cited Spies v. Price, 91 Ala. 166; Price v. Bell, 91 Ala. 180; Brewer v. Brewer & Logan, 19 Ala. 481; 1 Bom. Equity, § 430; 3 lb. § 1409 ; 48 Amer. Bep. 640; Brock v. Brock, 90 Ala. 87; Grigsby v. Osborn, 82 Ya. 371; Hardesty v. Richardson, 22 Amer. Bep. 57; Freemcmv .Freeman, Bib. 657; Story v. Black, 51 lb. 37; 8 Amer. & Eng. Encyc. Law, 1338-49.
   COLEMAN, J.

S. E. Blackstock, a minor, by Ms next friend filed the present bill, which may be regarded as a bill for specific performance, seeking to have the legal title to certain described lands divested out of the heirs of William Tolleson, deceased, and invested in the complainant. Upon the filing of the bill an injunction issued, restraining the executors from prosecuting a suit in ejectment against Blackstock to recover possession of the land in controversy.

It is unnecessary to consider at much length one aspect of the case, which seems to have been relied upon, to some extent, in the original bill; and that is that the executors, who were the sole parties to the original bill, actively and fraudulently interfered to prevent William Tolleson in his last sickness from executing a deed to the said Blackstock, or that William Tolleson, relying upon the promise of the executors to make a deed after his death, conveying the lands to the said Blackstock, was thereby induced to leave the deed unexecuted in his life-time. The bill was amended so as to make the widow and all the heirs of William Tolle-son parties defendant. It is not pretended that William Tolleson himself undertook in writing, or by written instrument authorized and empowered the defendants, or either of them, to make such deed or conveyance, or that the other respondents, heirs of the decedent who were not executors, and some of whom were not present, interfered in any way, by promise or otherwise, to prevent the execution of tbe deed by deceased to Blackstock, if such was the intention and desire of decedent.

Section 1845 of the Code reads as follows: “No trust concerning lands, except such as results by implication or construction of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing.”' This statute has been frequently considered in this court, and its proper construction may be regarded as practically settled. — Brock v. Brock, 90 Ala. 87; Patton v. Beecher, 62 Ala. 579 ; White v. Farley 81 Ala. 563; Manning Pippen, at present term; Kelly v. Karsner, 72 Ala. 106. No relief conld be granted npon tbe ground that tbe executors refused to execute a conveyance of tbe land to complainant, without a plain violation of this statute.

Tbe other grounds for relief made by tbe bill and testimony may be stated as follows : When tbe complainant, Blackstock, was about three years of age, be was left an orphan, and tbe deceased, William Tolleson, took him as a member of bis family, raised, educated, and in all respects treated him as one of tbe children. As tbe children of Williapi Tolleson married, or .attained their majority, be gave each.of them by deed of conveyance a tract of land. In May, 1888, the complainant Blackstock, being then about 17 years of age, married, and in tbe fall of that year William Tolleson put him in possession of tbe land in controversy, but made him no deed of conveyance. In September tbe following year, tbe deceased was stricken with paralysis, and after lingering ten or fifteen days died. He bad made bis will and appointed bis executors many years before, but after tbe time when tbe complainant was received into bis family as one of its members. Tbe bill then proceeds as follow's : “In consideration of love and affection gave and placed him in possession of tbe following lands,” describing them; “that be went into possession of said lands under a parol gift from tbe said William Tolleson, and has continued in possession thereof until tbe present time, using them in all respects as bis own, and that be has made valuable and permanent improvements thereon, . . upon bis faith in said gift,” &c.

The record is very voluminous, many witnesses having been examined by both sides. We have read all tbe evidence with care, and our conclusion is that tbe weight of tbe evidence does not establish that an absolute gift of tbe land was made, or intended to be made, at tbe time tbe deceased put tbe complainant in possession of it. As often expressed by him, bis purpose was to see bow tbe complainant would succeed, and if satisfactorily “be aimed” to give it to him. Tbe possession was merely permissive, and not under an absolute gilt. We incline to tbe view from all tbe evidence that, during bis last sickness, William Tolleson fully purposed to perfect a gift of tbe land in a legal way. Whether tbe failure was the result of not having a deed prepared, or tbe neglect of not calling bis attention to tbe fact that one bad been prepared for bis signature, or that be relied upon bis executors to carry out bis verbal request to that effect, it is unnecessary to consider. Tbe fact is ■undisputed, tbat be neither signed any instrument himself conveying the land, nor authorized in writing any one to execute such a conveyance. The question arises, can complainant enforce against the heirs of William Tolleson a specific performance of this verbal voluntary promise or request made by William Tolleson, and require the heij;s to convey to complainant the legal title, which descended to them on the death of their father. If William Tolleson had not died, but had recovered from his last illness, could the complainant maintain the present bill against him? If he could not, it will not lie against his heirs. The principle involved has been directly adjudicated in this State. A verbal promise by a father to his son, that if he will remove from North Carolina, and settle in Alabama, he will give him a particular plantation, being a mere gratuity, can not be enforced against the heirs or devisees of the father after his death, although the father may have put the son in possession of the land before his death. — Forward v. Armistead, 12 Ala. 124. This principle was re-affirmed in the case of Evans v. Battle, 19 Ala. 402, and again in Pinckard v. Pinckard, 23 Ala. 650.

The cases cited by appellee are of that class which grew out of a contract, based upon a valuable consideration, and the distinction is expressly made in such cases, and those which are founded upon mere gratuitous promises. — 23 Ala., supra, and Stone v. Britton, 22 Ala. 543. The other cases cited involve a different principle, and one which does not arise here.

The improvements made, according to complainant’s own testimony, amounted to only about eighteen dollars, a mere trifle as compared with the value of the land, and amounts to a small per cent, of its annual rental value, as shown by the evidence. We have declared that the evidence does not support the allegation that complainant went into possession under a parol gift, but rather'a permission to use and occupy during the pleasure of the owner, and that there was no absolute intention or purpose to make a gift until during the last illness of the owner. Under the influence of the foregoing authorities, complainant would not be entitled to relief under either aspect of the evidence, and an amendment of the bill in this respect would avail complainant nothing.

The enforcement of the law as we interpret it may work a hardship in some cases, but to grant relief, upon the evidence as disclosed in this record, would be to disregard the statute itself, and destroy the safeguards placed upon land titles and trusts concerning lands, by its provisions.

Tbe decree of tbe chancellor must be reversed. Tbe canse will be remanded, tbat tbe court below may render a decree in accordance witb tbe rules bere declared.

Tbe orders made by tbe chancellor in this case after the appeal was taken are not properly before us on this appeal. On tbe remandment of tbe casé, the court will have authority to bear and determine and make all proper and necessary orders in regard to tbe deed heretofore executed by tbe register.

Reversed and remanded.  