
    George F. Caldwell, Executor of James Caldwell, v. John D. Williams, and Others.
    A conveyance will not be decreed against the heirs of the donor, upon proof of a parol gift of land to Ms son-in-law, where there is no evidence of any agreement, or promise, made before the marriage; although possession was delivered to the donee, upon his marriage, and he, and those claiming under him, were suffered to remain in possession until after the death of the donor. Nor will it make any difference, that improvements have been placed upon the land, by the donee, if they .are only such as he was likely to have made with a view merely to the present use of the land.
    No agreement can be enforced, either in law, or in equity, which is not founded on a consideration. Some agreements, which are termed voluntary, are executed in equity, when made in favor of a wife, or children; but this is done only where the agreement is under seal, which imports a consideration, and renders the agreement valid at law: and there is no instance of an agreement being enforced, which is not only voluntary in the equity sense of the word, but is also nudum pactum at law.
    Standing by, and permitting another to build on his land, without giving notice, will not affect the right of the proprietor to the land, unless the buildings are of such a character as to shew, that the party erecting them, placed them there in the confidence of his being the owner of the land.
    This case, which was heard by Harper, Chancellor, at Laurens, in July 1830, will be fully understood from his decree.
    Harper, Ch. The bill charges, that James Caldwell, deceased, married the daughter of Washington Williams, now also deceased ; that in consideration of the marriage, and as an advancement to his daughter, the said Washington Williams put the said James Cald. well in possession of a tract of land in Laurens district; that James Caldwell continued in possession until his death, six or seven years afterwards, and, by his will, devised the said land to the complain, ant, David R. Caldwell, appointing the other complainant, George F. Caldwell, executor of his will; and that the said Washington Williams having since died, the defendants, his heirs at law, have commenced an action to recover the lands: and the bill prays, that the said action may be injoined, and . the defendants compelled to convey the land.
    The amount of the testimony, on the part of the complainants* was, that upon the marriage of Caldwell, he went into possession, of the land, and that he, or his executor, have retained possession ever since. Several witnesses testified to declarations of Washington Williams, made after the marriage, that he had given the land, in question, to his daughter, or to Caldwell. There was a good deal of conflicting testimony on both sides, which I do not think it necessary to examine minutely, as the case seems, to me, a clear one.
    So far as respects any claims that the complainants may have, by virtue of the length of possession, under the statute of limitations, that is a matter peculiarly proper for their defence in the Court of law, and can furnish no ground, for coming into this Court.
    • It is hardly necessary to say, that a parol gift of land transfers no right. . In general, evidence of such gift, is not admissible, although it has been received, in particular cases, to shew the character of the subsequent possession. Then regarding it as an agreement to convey, which is sought to be enforced on the ground of part performance, no agreement can be enforced, either in law, or in equity, which is not founded on a consideration. Without a consideration, it is, in fact, no agreement. Wo consideration appears here. There is no evidence, at all, of any promise, or agreement, before the marriage which might have been an inducement to it. All the expressions of Washington Williams, which are in evidence, were made after the marriage, and prove only a gratuity. “ He had given the land to his daughter, or to Caldwell.” I cannot presume, against the effect of complainants’ testimony, that it was founded on the consideration of marriage. Some agreements, which are termed voluntary, are executed in this Court, when made in favor of a wife, or children ; but these are always agreements by deed, or covenant; agreements under seal, which imports a consideration, and renders them valid at law. See the cases referred to by Mad-dock, in his Treatise on Chancery, 1 vol. 326, 327. There is no instance of an agreement being enforced, which is not only voluntary iu the equity sense of the word, but is also nudum pactum at law.
    It is argued, on other grounds, that the defendants ought to be compelled to execute the will of James Caldwell; for that he made improvements on the land, and Washington Williams having stood by, and acquiesced, it would now amount to fraud, to reclaim the land. The testimony of the witness was, that Caldwell cleared about fifty acres of the land, for cultivation, and erected some inconsiderable buildings, a stable, and an addition to a barn, I cannot think, that these improvements are of such a character, as to shew, that Caldwell made them in confidence of being the owner. They are such as he would have been equally likely to make; with a view either to the present use of the land, or to the permanent ownership. If a man stands by, and sees another build a house on his land, without giving notice, he will lose his land; butl amnot satisfied, that the same consequence would follow, if he should see him clear and cultivate it for a year, or two, and erect such temporary buildings, as might be necessary, for the purposes of that cultivation. Besides, taking the whole of the testimony together, it is not sufficient to convince me, that Caldwell had any positive promise, or agreement, that the land should be conveyed to himself, or his wife. He must have known the necessity of writing, to transfer a title to land, and that he had no legal title ; and if he made improvements, without any such provision, or agreement, he must have known that he was making them at his own risque.
    It is, therefore, ordered, and decreed, that the bill be dismissed, with costs.
    The complainants gave notice of appeal, and now moved to reverse the decree of his Honor.
    Irby, for the motion.
    There can be no question, that equity will, under circumstances, compel the performance of a parol agreement, to convey land. Stockley v. Stockley, 1 Yes. &.Bea. 23. It is said, that there must be a consideration, but a good consideration is sufficient; and the advancement of a child, in marriage, is a consideration, of the most sacred character. The principles of the case of Stockley v. Stockley, are conclusive of this; and it would be, in the highest degree, inequitable, after the donee had been permitted, for so long a time, to regard himself as the owner of the land, and to act upon that conviction, expending his money in improving its value, now to deprive him of it, and defeat his will.
    A. W. Thomson, contra.
    
    The agreement in Stockley v. Stock, ley, was a compromise, and therefore founded on a valuable consideration. Here the alleged gift is purely voluntary, and even if it were in writing, could not be enforced. The possession of the donee cannot avail to alter the legal character of the supposed agreement. If the possession were such as to give a title by the statute, then it would avail at law, and the complainants have no business in this Court; and if it were not sufficient for that purpose, it is wholly unavailing. The title to land does not pass by delivery, nor can an agreement, for the conveyance of lands, be established by parol evidence. In Westbrook v. Marbeson, 2 M’C. Ch. 117, it was held, that parol evidence could not be received to shew, that a release of dower was intended to be a release of th© inheritance. Even where the agreement is admitted by the answer., yet the defendant may protect himself by the statute of frauds. Thompson v. Tod, 1 Peter’s Circuit Court Rep. 388; Pym v. Blackburn, 3 Ves. 34 ; and see the cases collected in note (a) page ‘ 38. But a fatal objection, if there were no other, exists in the uncertainty of the alleged agreement. The land, it is alleged, was to be conveyed to James Caldwell, or to his wife; but there is a material difference in the effect of a conveyance to the one, or to the other, and this is sufficient to prevent a conveyance being ordered, either to the one, or the other. Equity will never decree a specific performance, unless the terms of the agreement are, so precise, that neither party can reasonably misunderstand them. Colson v. Thompson, 2 Wheat. 336. Moreover, a specific performance will not be enforced, when, from a change of circumstances, it would be unconscientious to do so. Mechanics Bank v. Lynn, 1 Peters, 376. If an absolute gift were in fact intended, the object of the donor must have been to provide for his daughter, and her family ; and that object has been entirely frustrated, by the death of his daughter, and her husband. And yet it is now insisted, that the Court of Equity shall decree a conveyance, without consideration, and without motive, when it was, most probably, for the express purpose of avoiding this, that the donor never executed a deed of gift.
    Waddy Thompson, in reply.
    The case of Stockley v. Stockley, has not been answered ; nor are its principles reconcileable with the decree in this case. There are other cases, in which the Court will enforce a promise to convey land ; as where, as in this case, there has been a part performance, and the other party has acted in the confidence, that it would be completed, it is abundantly proved, that there was an agreement to give ; and that the donor repeatedly declared, that he had given, and that he had done so, in order to put his children upon an equal footing, as to advancements. The same course was pursued, as to the negroes, with regard to whom no question has been made. On the death of his wife, Caldwell offered to the donor, to return the property he received with her, but this was refused., He retained possession, long after his wife’s death, cleared parts of it, and built houses; and all this, without any .opposition, or interference, by the donor. These acts are inconsistent with the character of a mere tenant, and establish James Caldwell to have been the owner. Buckmaster v. Harrop, 13 Ves. 456.
    Any performance, in part, is sufficient to intitlethe party to a full performance. There is no rule, designating the degree of performalice necessary; and from the very nature of the subject, there can be none. But it is said, this is a mere voluntary promise. It is not so. A provision for a child, on marriage, constitutes a meritorious consideration ; and, under the circumstances of this case, it partakes of the pecuniary character. The donor was accustomed to provide for his children, on marriage, to the same extent, that he provided on this occasion. This was a law of his household, and one from which he would not depart; and as his son-in-law had, doubtless, regulated his expenditure, with reference to this property, he refused to take back the property, when tendered to him, on the death of his daughter. This was acting upon a principle of justice, and Courts of Equity act upon the same principle, by enforcing a complete performance, where there is a meritorious consideration, and a performance in part.
   Johnson, J.

This Court concurs with the Chancellor, for the reasons expressed in his decree ; and the motion is therefore dis. missed.

Harper, J., concurred. O’Neall, J., having been of counsel in the cause, expressed no opinion.

Decree affirmed.  