#### Darlington v. M’Coole.

February, 1829.

(Absent Cabb, J.*)

Specific Performance — Parol Agreement That Father Will Give Sóli-in-Law Tract of Land.† — A parol agreement between father-in-law and son-in-law, that the former will give the latter a piece of land, *21supported by no substantially valuable or meritorious consideration, will not be specifically executed. at the suit of the son-in-law. after the death of his wife, against the father’s devisee of the land; neither would such an agreement be specifically executed, under snch circumstances, even if it had been in writing; nor would equity have aided a defective conveyance had such a one been made.

Darlington exhibited his bill against John M’Coole the younger, in the superiour court of chancery of Winchester, setting forth, that in May 1802, he married Catharine a daughter of John M’Coole the elder, of Frederick county. That, before the marriage, •and in contemplation thereof, M’Coole the •father wrote him a letter, wherein he promised him a place called The Falling Waters, being a piece of land parcel of the tract on which M’Coole lived, and though *this letter was lost, its contents could be proved ; and that, upon his mentioning, at breakfast, the second morning after the marriage, in the presence of his father-in-law and of the family and of the defendant among the rest, that he had to go to Front Royal (in another part of the same county), to confirm a contract he had begun with one Vanmeter for a tannery, in which business he intended to engage with prospect of great advantage, the father-in-law said, he need not do that, for he would give him the piece of land called The Falling Waters, to be his property (describing the boundaries), and moreover, that he and his son John would help him to improve it. That M’Coole’s declared motive was, to prevent his daughter from removing to a distant residence. That, in consequence of these promises, Darling-ton relinquished his beneficial contract with Vanmeter, for the Front Royal tannery ; was shortly afterwards put by his father-in-law in possession of The Falling Waters, being a piece of land, designated by metes and bounds, containing about thirty-five acres ; built dwelling houses on it, sunk vats for a tannery, and improved, held and enjoyed it as his own, until M’Coole, his father-in-law, died in 1815, having by his will devised it to his son, the defendant. And that, though M’Coole, the father-in-law, had never made him any conveyance of the land according to his promise and agreement ; yet he had laid off the boundary lines, in the presence of the defendant, his son and now his devisee ; and had often declared his willingness to make such conveyance. The bill prayed a specific execution of the alleged promise and agreement of M’Coole, the father, to give and convey the land to Darlington ; and that M’Coole, the son and devisee, might be compelled to convey it accordingly.

The defendant, in his answer, denied all the allegations of the bill, both as to the promise of M’Coole, the father, before Darling-ton’s marriage, and the agreement after the marriage, to give him The Falling Waters. He said, that his father, shortly after Darlington’s marriage, told him he might have the land in question, as a temporary accommodation *for his family, assisted him in building on and improving it, and suffered him to enjoy it, during his own life ; but neither made him any gift of it, nor ever intended *to*do so.

It was also alleged in the answer, and proved, that, upon Darlington’s marriage with M’Coole’s daughter, his father-in-law gave him such personal property as he advanced to his other daughters on their marriage : that he afterwards contributed the greater part of the labour and expense of the buildings (which were log-houses) and the other improvements, put on The Falling Waters: that Darlington’s first wife, the daughter of M’Coole, died in 1805, leaving one daughter, who was immediately taken into her grandfather’s family, and treated and brought up as one of his own children, and was provided for by her grandfather’s will, equally with his own daughters : and that Darlington had married a second wife, by whom he had several children.

Of the letter, alleg-ed in the bill to have been written, before Darlington’s marriage, by M’Coole, the father, to him, promising to give him The Falling Waters, there was no proof whatever. Neither was there any positive proof of the agreement alleged in the bill, to have been made, at breakfast, the second morning after the marriage; and the members of the family, being examined as witnesses, declared they had heard nothing *22of the kind. But several witnesses deposed, that M’Coole, the father, had pointed out the boundaries of the land, and frequently said he had given it to Darlington ; and that Darlington had held and enjoyed it as his own, during M’Coole’s life. Vanmeter deposed, that, having a valuable tannery at Front Royal, with a large stock on hand, he had entered into a contract with Darlington, before his marriage, to carry on the business in partnership, each to contribute equal stock, and to carry on the business at joint expense and for joint and equal benefit; that he thought, at the time, it would be a very profitable business; that Darlington had a tract of land, by the sale of which he could have

contributed his *share of in-put stock, by the time it would have been wanted, because of the large stock Vanmeter had on hand ; but before Darlington’s marriage, he (Vanmeter) received a letter, purporting to be written by John M’Coole the elder, though he did not know that it was in fact written by him, being unacquainted with his handwriting, in which he stated, that he had himself made Darlington an advantageous offer, and urged Vanmeter, to release him from the contract concerning the Front Royal tannery; which Vanmeter, in consequence of that letter, agreed to do, though very reluctantly. And Lewis M’Coole, a son of the elder M’Coole, deposed, that Darlington, shortly after his marriage went to Front Royal; and the witness was told by his father, that Darlington had made a contract with Vanmeter, ' provided he could furnish a sufficient sum of money to pay for half the stock of the tannery on hand; his father said, he had not the money to furnish him ; he hated to part with his child to go that distance ; and he thought it would be better to give them a piece of land on The Falling Waters. His father, after the death of Darlington’s wife, said he had never made him a deed, and never intended it; but he would probably give the land, or the value of it, to his child.

The chancellor dismissed the bill: and Darlington appealed to this court.

Johnson, for the appellant, insisted,

That the agreement between the elder M’Coole and Darlington, that the former would give him the land in question, if he would relinquish his contract with Vanmeter, was proved, by the fact, that Darlington had made a beneficial contract with Vanmeter, and gave it up ; by M’Coole’s declaration to his son Lewis, that it would be best to give him this land ; by his frequent declarations to others, that he had given it to him; and by the fact, that, even after his daughter’s death, and after Darlington’s second marriage, he had permitted him to enjoy the property without the least disturbance. And, he said, the relinquishment by Darling-ton, of his beneficial contract *with Vanmeter, was a valuable consideration performed on his part, which made the agreement obligatory on M’Coole; and this performance of the agreement by Darlington on his part, and the possession of the land, given him by M’Coole immediately, and enjoyed for so many years, took the case out of the statute of frauds.

Nicholas and Leigh, for the appellees, submitted, that there was no agreement proved ; that, taking the plaintiff’s own evidence, waving all criticisms to which it was obnoxious. and disregarding the evidence adduced on the other side, the most that could be pretended, was that M’Coole had promised, or rather had intended, to give the land, as an advancement to his daughter, with the view of having her settled in his neighbourhood. But, if there was an agreement, there was no consideration, no such act performed by Darlington, no such loss incurred by him, as. made it obligatory on M’Coole, in law or in equity, to fulfil the promise, under any circumstances ; much more, to convey to Darlington, after his wife’s death, property, which he could only have intended to give, if at all, as an advancement and provision for her. According to his own shewing in the bill, he had made no contract with Van-meter : he was only engaged in a treaty with him : and the evidence, narrowly examined,. proves there was nothing more.

*

He did not sit in the cause, because he had decided it in the court of chancery.

†

Specific Performance — Verbal Promise to Convey Land — Consideration.—The principal case holds that a *parol*agreement between a father-in-law and his son-in-law, that he will *ttive*his son-in law a tract of land, supported by no substantial value or meritorious consideration will not be specifically executed, at the suit of the' son-in-law, after the death of his Wife, against the father’s devisee of the land. Neither would such an agreement be specifically executed, under such circumstances, even if it had been in writing; nor would equity have aided a defective conveyance had such a one been made.

Upon the authority of the principal case it was *21field in Reed v. Vannorsdale, 2 Leigh 570. that where a wealthy brother verbally agrees with his brother, who is poor, that if he will forego his intention to move to the West, and move and settle on a tract of .land near the residence of such wealthy brother, he will convey the land to him in fee; the agreement was executed on the part of the poor brother but without incurring any expense or loss in so doing; there being neither meritorious nor a valuable consideration to support the agreement equity will not decree specific execution against the heirs of the wealthy brother.

In Jones v. Obenchain, 10 Gratt. 260, it is said, the case of *Darlington v.*Jf *Coole*is no authority on the question involved in the one now under consideration; but it serves to show the impression on the minds of the judges of this court, that where there was a meritorious consideration, meaning thereby a provision for the wife or child, equity will enforce a defective conveyance. To the same effect see the principal case cited in Sayers v. Wall, 26 Gratt. 379.

In Burkholder v. Ludlam, 30 Gratt. 262, it is said, in *Darlington v. M' Coole,*1 *Leigh*36, Reed v. Vannorsdale, 2 Leigh 569. Pigg v. Corder, 12 Leigh 69, Cox v. Cox, 26 Gratt. 305, specific execution was denied,' but there is nothing to be found in any of these cases in conflict or at all inconsistent with the decision in Shobe y. Carr, 3 Munf. 10. Oil the contrary the reasoning of the judges in some of these cases would rather seem to confirm the principles of that case. And in the case of Shobe y. Carr, 3 Munf. 10. it is held that where a testator having put his son-in-law into possession of a leasehold tract of land and delivered to him the lease, and permanent Improvements having been made by his son-in-law with the assistance of the family, and parol declarations by the testator that he had *given*him the land in considei ation of his having married his daughter and to prevent his moving to Kentucky; the son-ill-law had an equitable title to the land for the time the lease had to run, and to a release of the legal title up *on the heirs or*executors, according as the interest conveyed by lease might be greater or less.

Also in Frame v. Frame, 82 W. Va. 176, 9 S. E. Rep. 906. it is said: “Itmaybe regarded as settled law in 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 lather, thereby consummating his yerbal gitt, This was so held in Shobe’s Ex’rs 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. M' Coole. 1 Leigh.*30; Reed’s Heirs v. Vannorsdale, 2 Leigh 569; Pigg v. Corder, 12 Leigh 69; Cox v. Cox, 26 Gratt. 305.” To the same effect, see, citing the principal case, Marling v. Marling, 9 W. Va. 79; Miller v. Lorentz, 39 W. Va. 172. 19 S. E. Rep. 395; Goodwin v. Bartlett, 43 W. Va. 334, 27 S. E. Rep. 326. See the principal case cited in *footnote*to Parrill v. McKinley, 9 Gratt. 1; Griffin v. Cunningham, 19 Gratt. 571. See generally, monographic *note*on '“Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

BROOKE, President,

delivered the opinion of the court. The appellant, in his bill, without noticing the death of his first wife, or the existence of his daughter by her, or his second marriage and his issue by that marriage, claims for himself, a conveyance in fee of the land on which he had settled, on two distinct grounds ; first, a promise made him by his father-in-law, by letter before the marriage ; and, secondly, an agreement after the marriage, to give the land to him, in consideration of his relinquishing a valuable contract he had made with Vanmeter.

Of the letter before the marriage, there is no proof.

*As to the agreement after the marriage, the evidence, taking it most favourably for the appellant, is, that M’Coole gave him the property in question, as far as he could give it to him by parol, and by putting him in possession of it ; but there was no consideration for this gift, beyond the parental motive to advance his daughter, and to have her settled in his neighbourhood. There was, in fact, no concluded contract between the appellant and Vanmeter. The bill itself states, that the contract with Van-meter was inchoate only ; and although an attempt was made to prove by Vanmeter, that it was concluded, and that he reluctantly absolved the appellant from it, in consequence of a letter from M’Coole, soliciting him to do so ; yet he did not know, that the letter was from M’Coole, and it is lost. It seems clear, from the evidence of Vanmeter and Lewis M’Coole, taken on the part of the appellant, that, according to the statement in the bill, Darlington’s contract with Vanmeter was inchoate only, and depended on the appellant’s advancing money to the value of half the stock in Vanmeter’s tan-yard, and for the employment of half the hands, and the payment of half of all other expenses ; which would have required a large sum of money, such as the appellant could have by no means, commanded, but by selling a tract of land which he held. So that, if he gave up any thing in consequence of M’Coole’s promise, it was an uncertain speculation. The improvements on The Falling Waters, were of a character to induce no pecuniary expenditure ; and, such as they were, M’Coole is proved to have contributed two-thirds the labour of making them ; and the appellant’s portion of the labour of making them, was more than *23compensated by the use of the property for thirteen years, or more, free of rent.

In such a case, when the donor has received nothing, and the donee lost nothing ; when the chief motive of the gift, a provision for the donor’s daughter, is annihilated by her death ; and when the father has discharged the moral obligation to provide for her issue; there is nothing to call into ^action the powers of a court of equity. There is neither a valuable nor a meritorious consideration ; without one of which, a court of equity will not aid a defective conveyance, much less enforce a bare agreement, even if it were in writing.

The decree is affirmed.