McClure v. McClure , 1 Pa. 374 ( 1845 )

The opinion of the court was delivered by

Gibson, C. J.

This assignment of error presents scarce any tangible point; for it comprises allegations not only of misdirection but of want of direction, for which there was no prayer; and this, too, in reference to the weight which particular parts of the evidence, it was supposed, deserved to have. With most of these we have no concern; and I turn to those which are properly cognisable by a court of error. A material question was, whether the case was within the statute of frauds; and the jury were instructed, that if a son make improvements on the faith of a promise that his father will give the land to him, the case is not such as can be excepted from the statute ; and this is said to be manifest error.

The first thing that strikes us is, that such a promise is void at its creation for want of consideration; and the question is, whether a consideration can be added to it by an expenditure of money or labour on the land without the father’s request. On the ordinary principles of contracts, such a promise would not be decreed, though the statute of frauds had not been enacted. A nude promise cannot be enforced either in equity or at law; and this is emphatically true in regard of a promise to give by will, which is inherently revocable. I agree that a present contract of sale may be decreed against the heir who, succeeding to the ancestor’s legal title, is also a trustee for the purchaser, though he was not a party to the covenant, as was done in Gill v. Vermedum, 2 Freem. 199; and I doubt not that an agreement to devise to a son, on condition that he make particular improvements, might be followed by the same consequence. But the expenditure would be in execution of the contract: not a thing independent of it. The son must be bound by the terms of the contract, the consideration being promise for promise; or he must be at liberty to bind the father by improving in performance of a proffered condition, the consideration belonging to the class called executory. Now the supposed promise, in our case, has no consideration of either sort. Expenditure in improvements without stipulation or request, is gratuitous, and, like any other unsought service, not a subject of compensation by bill or action; and the effect of it, as a consideration, is the same whether it be a benefit to the one party or a detriment to the other. Here there was no evidence that the son expended money on the foot of an agreement or a request; and there consequently could be no consideration to support a contract. A son, like a stranger, must be a purchaser for value given or prejudice received, in order to take even a present agreement to convey out of the statute; and he must equally be a purchaser of a promise to give him the estate by will; not by an officious expenditure in improvements, but by something done in execution of the contract or at the promisor’s request. The reason is, a positive gift is an encouragement to treat the property as the donee’s own, while a promise to give is not.

The judge charged that the plaintiff was bound to show clearly an expenditure of his own money; and the statement of this undeniable principle is said to have led the jury into a belief that no evidence of such expenditure had been given.' Strange conclusion from such premises.

It is assigned also that he charged against a recovery of the particular part of the land on which the improvements were made, unless the plaintiff had entitled himself to the whole. Most certainly the contract, if there were onej was entire; and it lay not with the jury to compensate the plaintiff by making a new one. Such is the doctrine of Hanes v. Legget, 1 Watts & Serg. 301; and it would be dangerous to countenance any other. This exception, like the rest, therefore is not sustained.

Judgment affirmed.