#### Graham *et al. versus*Craig *et al.*

1. Donee of a parol gift of land, invalid because of the statute of frauds, entering into possession on the gift, holds for himself and not for the donor.

2. Holding for the donor would be'inconsistent with the nature of the gift, which imports an intention to give the title and right of possession to the donee.

3. The donor of a gift invalid for want of a writing, may recover the land, not because of a fiduciary relation with the donee, but because the title did not pass.

4. If the donor allows his donee to enjoy the gift for twenty-one years, the statute of limitations makes of the inefficacious gift- a good title.

5. Moorhead by parol gave land to Craig, his son-in-law. He devised the land to his daughter, Craig’s wife, who died before him. He gave $3000 to a-daughter of Mrs. Craig. She accepted the legacy. After Moorhead’s death some of the children of Mrs. Craig, after Craig’s death, brought ejectment against his widow and the legatee, who were in possession. Held, that th^ legatee was not estopped by her acceptance of the legacy from claiming theland.

*4606. At the time the legacy took effect Craig was living, and the legatee had no estate to be relinquished when she accepted her legacy, and had no election to make.

7. Craig’s estate descending on her afterwards could not operate by retro-action to put her to an election.

8. The estate from her father came to her by operation of law, unaffected by anything she had done.

October —, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Westmoreland*County, of October and November Term, 1875, No. 257.

This was an action of ejectment, brought September 30th, 1869, by James Graham and Nancy his wife, in her right, and David Harbeson and Rebecca Jane his wife, in her right, against Sybilla Craig, Elizabeth Craig, and others, for a tract of land' in Derby township, containing 300 acres, more or less.

The case was tried, November 15th, 1872, before Logan, P. J.

. It was admitted at the tidal that the title was originally in Samuel Moorhead, who died about March, 1853. One of his children was Rebecca, who intermarried with Alexander Craig. She died in the lifetime of her father, February 3d, 1835, leaving to survive her her husband and four children, three of whom, viz., Nancy and Rebecca Jane, the two plaintiffs, and Elizabeth, one of the defendants, survived the decedent. The fourth had died intestate, and without issue. •He left a will, dated August 3d, 1845, which contained the following clause: “To my daughter Rebecca, I wilt the Trimble farm, and as much of the Cahill'farm as will give water-power-on Magee’s Run,” the land in dispute. He bequeathed also $3000 to each of his three granddaughters.

The plaintiff rested, after having given the foregoing matters in evidence.

The defendants then gave in evidence the following:

“ March 20th, 1828.

“Mr. Alexander Craig.

“Sir: I have understood that you were lately at my house, wishing to see me. I also understood that you have some thoughts of changing your place of residence. I have for some time past thought of giving you a mill-seat, it is said I have, on Magee’s Run, if it would suit you to improve it. It might be worth your while, at any rate, to come over when a convenient time offers, and I will show it to *461you, and we can then have more conference on the subject than it would be convenient for me to commit to writing.

“ Yours, etc.,

“ Samuel Moorhead.”

"Witnesses to handwriting:

John Barnett,

Samuel Wallace.

Proved 10th June, 1854, before William Barnett. Recorded 22d June, 1854.

*Samuel Huhey*testified that Craig, in March, 1828, was carrying on the fulling-mill business, across the Loyalhanna, near Latrobe. He moved to the Cahill place in 1830 or 1831. Moorhead was often at Craig’s. He told witness that the farm witness “ lived on took in the water-powerj that he made this line to throw the water to Craig.” Said the reason he did this, he rhight not live long, the Cahill, farm -would be sold^and they might give Craig trouble; that he had given him that farm; that he had written Craig a letter, when he was over at Loyalhanna, to come over to this place. After this he told witness he had given Craig the place. He always spoke of this as Craig’s farm. Witness saw the line marked when Moorhead ran off this portion. Craig erected a house and factory. Craig claimed the land as his own, both by virtue of Moorhead’s letter and also by adverse possession. He cleared some of the land and planted an orchard. Craig died on the land, about September, 1869; had lived there from the time witness first spoke of until his death. He raised three daughters of his first wife’s. He married a second time; had three or four children more. His daughter Elizabeth and his widow have lived on the place since his death.

Another witness testified that he was present with Moor-head and Craig when they ran the line. Witness, under Moorhead’s direction, marked a line tree. Moorhead then said, “From this line-to the ridge what I own I give to Craig.” Craig took timber from the land.

- Another witness testified that Craig claimed the land as his whilst Moorhead was living ; that Craig expected a conveyance from Moorhead, but always relied on the letter.

A number of witnesses testified in the same way, as to the length of Craig’s possession; that he built houses and mills, and improved the land, cut and sold timber, laid out and sold lots, and exercised acts of ownership generally. Also, that taxes.were assessed in his name, continuously, from 1832 to. 1872.

He devised the land to the defendants.

*462Plaintiff, in rebuttal, gave evidence that Craig spoke of the land as his wife’s; that he had sold some of the land, and had the deed made by Moorhead; that he expected Moorhead would do what was right; that Moorhead, after his (Craig) wife’s death, said he intended to do by him as if his wife had lived; that he moved on after he got the letter because he expected his wife would get the land.

The Court charged:

“ The effect of the will of Samuel Moorhead was to pass all his title to Rebecca Craig, and the plaintiffs being her children, áre *prima facie*entitled to a verdict for the undivided two-thirds of the premises, it being conceded that the title was originally in Moorhead. The defendants insist that the title of Samuel Moorhead became vested in Alexander Craig, under whom they hold. Whether they have succeeded in establishing this is in the end a question for you. •

“ We instruct you that the letter of Moorhead to Craig, of the 20th March, 1828, was not of itself effectual to pass the title ; it was not in terms a conveyance, nor does it refer by description to the land. Nor is there such evidence of parol contract, possession takeu pursuant to it, and valuable improvements made, as would take the case out of the statute of frauds, and constitute a valid conveyance.

“As to the defendants’ claim that they have established a title in Alexander Craig and his devisees, under the statute of limitations, we have to say, that this is a question for determination by you, under proper instruction. To sustain such title, it is incumbent upon the defendants to satisfy you that, as against Samuel Graham, they for twenty-one years held actual, continued, visible, notorious, distinct, and hostile possession. If one enters as a tenant he cannot, without some hostile and unequivocal act of ownership, brought home to the knowledge of the owner, start an adverse holding so as to begin the running of the statute of limitations, and the same rule applies where the holding is permissive, or where possession of land is taken with an intention to occupy it subject to the will of the owner.

“ The defendants here first claim, that if Alexander Craig went into the laud by virtue of a parol purchase or gift from Samuel Moorhead, that this would justify the starting of the statute. If there was a parol contract of sale between Moorhead and Craig, by which the title was understood to be passed, and Moorhead gave up the land to Craig, and Craig thereupon took it as his own, and so held it with the consent of Moorhead, this wuuld justify you in finding the running of the statute from the date of such taking posses*463sion, and if continued for twenty-one years in the manner befoi’e recited, would give a title under the statute of limitations. The parol contract could not of itself be set up as evidence of title, but if duly proven would be evidence of adverse holding by Craig, and knowledge of such holding by Craig. The same rule would apply, if you believe from the'evidence there was an actual gift of the land by Moorhead to Craig. The evidence of either the parol contract or gift, ought to be satisfactory to your minds. That degree of proof essential to establish a parol contract as inception of title would not be requisite, but should be satisfactory, and consistent with the evidence in the cause. In support of this position, it is insisted on the side of the defendants that' Craig received the letter read in evidence, that he went into possession, that he claimed title, and made valuable improvements. Plaintiffs, however, urge that Craig got money (some amount) from Moorhead to build -part of the improvements; that the living was only permissive, that he spoke of getting some other evidence of title; that after the death of his wife he asked whether things were to continue as they had been, and that Samuel Moorhead actually willed the property to Rebecca, his wife.

“ If Craig was only on this land by permission of Moorhead for life, or other temporary period, or Moorhead in fact gave tlie land, if given at all, to his daughter, the wife of Craig, in 1829 or 1830, then as against these plaintiffs the statute could not run in favor of Craig, unless he subsequently began an adverse holding, and brought it home to Moorhead by some unequivocal act; in this event the statute would only begin to run from the doing of such act. If you find the statute to have started at all you must be satisfied the adverse holding continued for twenty-one years before bringing the suit, in order to defeat the plaintiffs’ title.”

The plaintiffs’ points and their answers were as follows:

1. “In this case, from the relation existing between Moor-head and Craig, the law would require much stronger evidence, both of the parol gift and of the adverse possession under it, than if they had been strangers. That here the proof of both ought to be direct, positive, express, and unambiguous, otherwise- the legal title must prevail, and the plaintiffs ought to recover the two-thirds of the land in dispute.”

Answer: “ As to parol gift, we have instructed you that there is no evidence which would justify you in finding a parol gift against the statute of frauds. As to the question of the statute of limitations, this is a question for you under the evidence, and it is sufficient if the neces*464sary facts are made out clearly and satisfactorily upon this point.”

2. “ If the jury believe Craig went on the land in dispute under his father-in-law’s title, expecting the latter at-some future time to convey or devise it to him, his possession would not be adverse, and could only become so by an open and explicit denial of Moorhead’s title brought to his knowledge, and there being no evidence- that the latter knew that Craig claimed the land adversely to him, they must find for the plaintiffs the undivided two-thirds of the land.”

Answer: “ The first branch of the proposition affirmed; but whether or not there was any such demonstrative act of adverse holding, is a question for you.”

3. “ If the jury believe Craig went on the land in dispute under the title of his father-in-law, believing the latter would give the same to his wife Rebecca, then his possession would not be adverse and could only become so by an open and explicit disavowal of Moorhead’s title, brought to the knowledge of the latter, and there being no evidence of this the plaintiffs are entitled to recover two-thirds of the land.”

Answer : “ The first part of the proposition affirmed; as to whether or not there is evidence of the facts, is for the jury.”

4. “ Elizabeth Craig, having accepted, under the will qf Samuel Moorhead, a legacy of about $3000, cannot now resist the claim of plaintiffs to the possession of the land in dispute, and as against, her, the plaintiffs are entitled to recover.”

Answer: “ This point is answered in the negative.”

The verdict was for defendants.

The plaintiffs removed the record to the Supreme Court, and assigned the answers to their points for error.

*Marchands*and *JE.*Cowan, for plaintiff in error.

Craig having received possession from Moorhead could not hold adversely without an- unequivocal act of ouster, there was therefore no evidence on which adverse holding could be submitted to the jury, and the Court erred in so submitting the question: Muirhead *v.*Fitzpatrick, 5 W. *&*S., 508; Wilson *v.*Davis, Id., 523 ; Sartwell *v.*Wilcox, 8 Harris, 117 ; Kidder *v.*Boom Co., 12 Id., 193. Nor was there any evidence from which the jury might legally infer, either the adverse holding, or the notice of it to Moorhead : Gilchrist *v.*Rogers, 6 W. & S., 488; Urket *v.*Coryell, 5 Id., 84; Miller *v.*Cresson, Id., 301; Switland *v.*Holgate, 8 Watts, 385. Notice of ..any adverse holding on the part of Craig should be brought ihome to Moorhead: Zeller *v.*Eckert, 4 Howard, 289.

*465*H P.*Laird, *H. D.*Foster, and *Hunter $ Klingensmith,*for defendants in error.

A gift of land by parol, when accompanied by possession, manifests the intent of the donee to enter not as tenant, and proves the donor’s admission that possession is so taken: Sumner *v.*Stephens, 6 Met. (Mass.), 336. The parties met face to face, identified the land, and fixed the boundaries: 1 Sugden Vend., 133-136 ; Simpson *v.*Breckenridge, 8 Casey, 287; Colt *v.*Selden, 5 Watts, 528; McFarson’s Appeal, 1 Jones, 503. At least this was an executed parol contract: 1 Sugden Vend., 162; Miller *v.*Miller, 10 P. F. Smith, 16. Moorhead encouraged him to settle on the land and make improvements: Big Mountain Co.’s Appeal, 4 P. F. Smith, 361; Swartz *v.*Swartz, 4 Barr, 358 ; Rerick *v.*Kern, 14. S. & R., 267; Richards *v.*Elwell, 12 Wright, 361; Moss *v.*Culver, 14 P. F. Smith, 414; Young *v.*Glendening, 6 Watts, 539.

Judgment was entered in the Supreme Court, November 4th, 1875.

Per Curiam :

A parol gift of land may be invalid because of the statute of frauds and perjuries, but the donee entering into possession upon the gift holds for himself and not for the donor. A holding for the donor would be inconsistent with the nature of a gift, which imparts an intention to give the title and right of possession to the donee. The donor, whose gift is invalid because of the want of a writing to evidence, it may recover the land, yet this is not because of a fiduciary relation requiring a restoration of the premises, but because his title did not at law pass from him. Hence, if he suffer his donee to remain in the enjoyment of. his gift for twenty-one years he stops his remedy, and the statute of limitations ripens the inefficacious gift into a good title.

There was no estoppel against Elizabeth Craig, for the plain reason that at the time of the death of her grandfather, the testa'tor, and whe'n the legacy took effect, her father was living, and she had no estate to be relinquished when she accepted her legacy of $3000, and therefore had no election to make. Her father’s estate descending to her afterwards cannot operate by retroaction, to put her to an election she was never bound to make. The estate from her father came to her by operation of law unaffected by anything she had done.

Judgment affirmed.