
    *Reed’s Heirs v. Vannorsdale and Wife.
    March, 1831.
    (Absent Coalter and Carr, J.)
    Specific Performance — Verbal Agreement to Convey Land — No Consideration — Case at Bar. — J. being wealthy and childless, verbally agrees with his brother C. who is poor and has a large family of children, that if 0. will forego his intention to move to the west, and move to and settle on a tract of land of J. near his residence, J. will convey the land to him in fee; C. induced by this promise, executes the agreement on his part, but without incurring any expense or loss in so doing: Held. there was neither a meritorious nor a valuable consideration to support the agreement, and equity cannot decree specific execution against J. ’s heirs.
    In a suit in the superiour court of chancery of Winchester by Charles Reed against Abraham Vannorsdale and his wife Anne, who was the devisee of her first husband James Reed deceased, the case alleged in the bill, and proved by the evidence, was thus:
    Charles Reed was the brother of James Reed. Charles was poor and had a large family of small children ; James was wealthy, and had no children. Charles resided in the county of Hardy, but had come to a fixed purpose to move to the western country, in the hope of bettering his condition, and making some provision for his family. James resided in Hampshire, and being apprised of Charles’s purpose of migrating to the west, to divert him from it, he not only stated to him his ability, as well as his desire and intention, to place him in independent circumstances, and to make him and his children the chief objects of his bounty, but he purchased a tract of land near his own residence in Hampshire, and promised Charles, that if he would remove to this land, and settle himself upon it, he James would bear all the expenses of his removal, and would convey the land to him in fee simple. Induced by this promise, particularly, with other assurances of favor and bounty to himself and his children, Charles abandoned his design of moving to the western country, moved from Hardy to the land in Hampshire, (James defraying the expense, according to his promise), settled himself upon it, and enjoyed the *use and profits of it during James’s life. But it was not proved or alleged, that Charles incurred any expense, or loss of any kind, by his compliance with his brother’s wishes. James, by his will devised the land in question to his wife Anne, who afterwards married Van-norsdale. And the object of the bill was to have a specific execution of James’s promise to convey the land to Charles in fee simple.
    The plaintiff died pending the suit, and it was revived by his heirs. The chancellor dismissed the bill; and the plaintiffs appealed to this court.
    Johnson, for the appellant.
    S. Taylor, for t.ie appellee.
    
      
      Specific Performance — Verbal Gift of Land. — It may be regarded as settled lawin this state, and in Virginia, that a verbal donee of land — a child, who, under the verbal gift, has taken possession of the land and improved it, — has a right to -demand in a court of equity a specific performance of the contract by the execution of a deed by the father, thereby consummating his verbal gift. This was so held in Shobe v. Carr, 3 Munf. 10, decided as long ago as 1811, and this case has been repeatedly followed or recognized as law by numerous Virginia decisions ever since. See Darlington v. McCoole, 1 Leigh 36; Reed v. Vannorsdale, 2 Leigh 569; Pigg v. Corder, 12 Leigh 69; Cox v. Cox. 26 Gratt, 305.— Green, J., delivering the opinion of the court in Frame v. Frame, 32 W. Va. 476, 9 S. E. Rep. 906.
      In Burkholder v. Ludlam, 30 Gratt. 262, the principal case was also cited as not being in conflict or at all inconsistent with the decision in Shobe v. Carr, 3 Munf. 10; anditis noted that Cabell, J.,in the principal case, took occasion to say that if it had appeared that expense or loss had been incurred by the donee in foregoing his intention to move to the West, and in moving to and settling on the land promised him by the donor, he would have been of opinion that specific execution ought to have been enforced. In this case (Burkholder v. Ludlam), it was held that a court of equity will compel the conveyance of the legal title of land claimed under a parol gift, supported by meritorious consideration, and by reason of which the donee has been induced to alter his condition and make expenditures of money and valuable improvements upon the land.
      In Cox v. Cox, 26 Gratt. 312, 313, Staples, X, speaking for the court, said; “This court has repeatedly expressed its disapprobation of those pretended contracts based upon declarations by parents of intentions to make certain specific provisions for children, in consideration of supposed services rendered or sacrifices made by the latter. Such promises are generally made in the freedom and confidence of domestic intercourse, and without a suspicion that they constitute legal obligations. The efforts constantly made to enforce them fully vindicate the statute of frauds and periuries. Reed's Heirs v. Vannorsdale & Wife, 2 Leigh 569; Pigg v. Corder. 12 Leigh 69.”
      The principal case is also cited and its decision approved in Goodwin v. Bartlett, 43 W. Va. 334, 27 S. E. Rep. 325.
      On the subj ect of specific performance, see further, foot-note to Griffin v. Cunningham, 19 Gratt. 571, and monographic note on “Specific Performance" appended to Hanna v. Wilson, 3 Gratt. 243.
    
   BROOKE, P.

The promise and agreement of James Reed, alleged in the bill, is satisfactorily proved. Charles Reed being very poor, and having a large family, and James being relatively rich, and having no child, he was, in some degree, morally bound to provide for his needy brother and family : but a court of equity does not take cognizance of such imperfect obligations. E)ven in the case of parent and child, equity will not decree the execution of an agreement to provide for the child, though the parent is morally bound to provide for him, unless the agreement is under seal, so that at least nominal damages may be recovered upon it at law. In Darlington v. M’Coole, 1 Leigh, 36, the principle was laid down by the court, that there must be a valuable or meritorious consideration, or a court of equity will not aid a defective conveyance, much less enforce a naked agreement, though it be in writing. In the case before us, there was neither a valuable nor meritorious consideration. And there is no case, in which equity has decreed specific execution of an agreement, even one in writing under seal, founded on the imperfect obligation to provide for a brother or other collateral relation. In Vernon v. Vernon, 2 P. Wms. 594, specific execution of the covenant was decreed, upon the consideration, that Henry, the elder brother of Thomas Vernon who executed the covenant, had devised *him an estate worth ,£10,000, with a limitation over to his brothers, upon his dying without issue ; a limitation, which, though void, created a strong moral obligation on Thomas to provide for his brothers, which might have influenced him when he executed the covenant to do so. That was stronger than the mere natural obligation of one brother to provide for another. In the case before us, the promise to convey the land, was a naked promise, without any obligation of the character of that in Vernon v. Vernon ; and it was a parol promise, on which an action at law for damages could not be maintained.

GREEN, J,, concurred.

CABELL, J.

I am of opinion to affirm the decree of the chancellor, on the ground of ■defect of consideration ; the consideration proved, in this case, being neither valuable nor meritorious. But I take occasion to say, that if it had appeared, that Charles Reed had incurred necessary expense or loss in executing his part of the agreement, I should be of opinion that specific execution of it, on the part of James Reed and his heirs, ought to be enforced.

Decree affirmed.  