My study of this case leads me to these conclusions:
(1) J. W. Rowland has lost his interest by reason of estoppel, so, as to him, I agree that the case should be affirmed.
(2) C. A. Rowland and R. A. Rowland should recover, since there was no parol gift of the lands to A. B. Rowland and M. M. Rowland; and an estate by entirety never came into existence. This second conclusion is the *Page 605 reason for my dissent; and I now discuss this second conclusion:
Some of our cases concerning a parol gift of land are: Young v. Crawford, 82 Ark. 33, 100 S.W. 87; Bostleman v. Henkle, 152 Ark. 628, 239 S.W. 30; Akins v. Heiden,177 Ark. 392, 7 S.W.2d 15; and Coop v. Johnson, 190 Ark. 550,80 S.W.2d 70. Other cases are collected in West's Arkansas Digest, "Gifts," 25. In Young v. Crawford, supra, Mr. Justice WOOD quoted from Pomeroy as follows: "`A parol gift of land' says Professor Pomeroy `will not be enforced unless followed by possession and by valuable improvements made by the donee, or unless there are some special facts which would render the failure to complete the donation peculiarly inequitable and unjust.'"
It will be observed that, before a parol gift will be enforced, there must be shown either (a) possession and valuable improvements; or (b) facts which render the failure of the donation peculiarly inequitable and unjust. Let us examine the evidence in this case by these two tests.
As regards (a) — possession and valuable improvements — there is not the slightest scintilla of evidence that A. B. Rowland ever made any improvements on the land; so, A. B. Rowland is in no position to enforce a parol gift against C. A. Rowland and R. A. Rowland, who are the heirs of their mother.
As regards (b) — failure peculiarly inequitable and unjust — there is no evidence that A. B. Rowland and M. M. Rowland ever claimed to own the land as a gift from J. H. Atkinson. In fact, the evidence shows rather clearly that they did not so claim. I refer to the recitals in the deed that A. B. Rowland and wife made to the other heirs of J. H. Atkinson on November 18, 1893, when the heirs of J. H. Atkinson (of whom M. M. Rowland was one) divided the estate of J. H. Atkinson. This deed from A. B. Rowland and M. M. Rowland (as first parties) to the other heirs of J. H. Atkinson (as second parties) recites (as consideration): "Witnesseth that *Page 606 the said parties of the first part, for, and in consideration of the sum of sixty acres of land as their part of said estate by said parties of the second part, . . ."
It will thus be observed that A. B. Rowland and M. M. Rowland were taking the sixty acres of land here involved as M. M. Rowland's part of the estate of J. H. Atkinson. This recital in the deed clinches the argument that there was no parol gift by J. H. Atkinson to A. B. Rowland and M. M. Rowland.
Due to this recital, and to the absence of the essential elements of a parol gift, I think the case at bar falls squarely within the rule announced by this court in McGraw v. Berry, 152 Ark. 452, 238 S.W. 618. The application of that case to the case at bar would result in C. A. Rowland and R. A. Rowland each owning an undivided one-third interest in the land and mineral rights subject to the life estate of their father, A. B. Rowland.
Because of the views herein expressed, I respectfully dissent from the majority.