
    JULY TERM. 1808.
    Lessee of Syler and wife against Peter and Frederick Eckhart.
    Sunbury, Monday, July 11th.
    A parol gift of lands by a father to his son, accompanied with possession, and followed by the son's making improvements on the land, is valid, not-withstanding the Act of frauds and prejuries.
    THE wife of Syler was the daughter of ~ohn Eckhart, deceased, and the defendants were his sons. The latter were in possession of different parts of a tract of land, which it was alleged belonged to the father who died intestate; and this ejectment was brought to recover the portion which descended to the daughter. There was no dispute that the land was formerly owned by the father; but the defence set up was this, that the father made aparo1g~ft to the defendants of the land they respectively occupied at the trial, being parts of a larger tract on which he resided, and put them in possession nearlytwentyyears before his death; that they continued in their possession during his life, made valuable improvements, and paid the taxes which were assessed in their respective names, and not in that of the father. No deed passed to either of them; but one witness swore that the father, a few years before his death, pointed out the division line of the land which he said he had given to his sons Frederick and Peter; and also that when Peter exchanged three or four acres of his part with one Snyder who wanted a deed from the father, the latter told him he must get it from Peter. Other witnesses swore to the like declarations of the father, that he had given the land to his sons; but there was some contradiction in the testimony taken together.
    The cause was tried at a Circuit Court for Dauphin, before Yeates J. who charged the j'ury that if they were satisfied that John Eckhart had made an actual gift of the land to his sons, they should find for the defendants; but if they thought his intention was to give them possession merely, reserving the title to himself, thev should find for the plaintiff. The jury found for the plaintiff against the inclination of his Honour’s mind; and a motion was made for a new trial, which was overruled by consent and without argument, that the question might come appeal to this court.
    It was accordingly now argued upon that appeal, by Duncan for the plaintiff, and by Elder and Hopkins for the defendants; and although several points were made to the court upon the evidence reported by Judge Yeates, as that Syleds wife had been advanced in her father’s life time, and therefore was not entitled to a share of his estate, until the advancement was brough' into hotchpot, and also that the whole was a question of fact which the jury had a right to determine, the material point was, whether a parol gift of land, under the circumstances of this case, passed the title.
    For the defendants it was argued, that this court proceeding upon equity principles, would, like a Court of Chancery, carry into effect any parol agreement concerning lands, where it was in part performed; for the statute of frauds should never be so turned, construed, or used, as to protect or be a means of fraud. That delivery of possession had always been held to be a part performance, especially if money had been expended in improvements. 1 Fonbl. 165. 168. 175. Sugden's Law of Vendors, &c. 65. 73. Wills v. Stradling, 
      
       Earl of Aylesford’s case, 
      
       That there was no difference as to this point between a parol gift upon the consideration of natural love and affection, and a parol transfer for money; and that it would be a gross fraud upon the defendants to defeat their title, after having been more than twenty years in possession, converted the land from a wilderness to a farm, paid the taxes, and exercised acts of complete ownership with the consent and direction of the father. There was clear proof of a gift, and the verdict was therefore against law and evidence.
    For the plaintiff it was contended, that by the Act of frauds and perjuries of 21st March 1772, 1 St. Laws 640., an estate by livery and seisin only, or by parol, is nothing more than an estate at will; and that this Act should not be frittered away by distinctions, as it had been a subject of regret among the judges in England that the provisions of their statute had ever been infringed or weakened by construction. Cooper v. Elston.  That from this sentiment the modern cases had gone upon much stricter grounds than formerly, refusing to consider the payment of money as a part performance. That at all events,cases of part performance by delivery of possession existed only as.between vendorand vendee, and in such of those cases merely wherein the vendee’s possession was inconsistent with the vendor’s title, Wills v. Stradling before cited, and 1 Sugden 73.; but that delivery of possession by a parent to a child was not inconsistent with the parent’s title, particularly where the father and family resided on the same tract, and possession of part only was delivered to the son. The question of gift or not was however a question of fact, and so left to the jury whose province it was to decide.
    
      
       3 Vez.jr. 381.
    
    
      
       2 Stra. 783
    
    
      
       7 D. & E. 14.
    
   The opinion of the Court was delivered by

Tilghman C. J.

This is an appeal from the Circuit Court of Dauphin county, on a motion for a new trial, overruled by Judge Yeates who tried the cause, without ai-gument and by consent.

The defendants relied on a parol gift of lands by their deceased father, in consequence of which they had made valuable impi-ovements, and had long possession in their father’s life time.

Although the court are not disposed to extend the principles on which parol agreements concerning lands have been confinned, farther than they have been already carried, yet they are bound by what has been decided. It has been settled that where a parol agreement is clearly proved, in consequence of which one of the pax-ties has taken possession and made valuable impx'ovements, such agreement shall be carried into effect. We see no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he kn'ew to be void, and thus entice his child into a great expenditure of money and labour, of which he meant to reap the benefit himself. Whether such gift was made in the present instance was submitted by the court to the jury.The jury thought there was not a gift; but the Judge who tried the cause was dis~ satisfied with the verdict, and thought that the evidence in favour of the gift greatly preponderated. He was better able to judge of this matter than we, who only take the evidence from his notes; and therefore his opinion is entitled to great weight. But independent of that, enough has appeared to satisfy us that there is reasonable ground for a new trial. The Court forbear to enter into remarks upon the evidence, as the cause i~ to be tried again.

New trial awarded.  