Appellant seeks a rehearing upon the single proposition stated thus: "Assuming a parol gift has been established, the same is absolutely void and unenforceable, as the plaintiff's proof is not of that character which justifies a court of equity in invoking the equitable rule of estoppel in order to take the case out of the operation of the statute of frauds." Reliance is placed upon the reasoning in the case ofBurris v. Landers, 114 Cal. 310, [46 P. 162]. In that case "plaintiff's real claim was that he entered with knowledge and approval of Landers, and under Landers' promise that he would thereafter, upon demand, make him a deed, and that relying upon that promise, he made lasting and valuable improvements upon the property."
Appellant concedes that a present gift was established from Mrs. Bonynge to Mrs. Howard, which, though defective in form, equity will perfect. Such was not the case of Burris v.Landers, of which the court said: "It is an effort simply to enforce a promise to make a gift, the execution of which was never attempted to be completed by deceased in his lifetime." After stating the nature of the action the court said: "This, it will be noted, is a different action from one to compel the perfection of a gift presently but incompletely made." In the case cited the property consisted of a dwelling and lot in the city of San Francisco and was occupied by plaintiff about three years when the donor died. The court held that, even in such a case as this, the donor can be compelled to make his promise good where "the donor by promises induces the donee to change his position to his detriment." In summing up the case the court said: "The evidence, then, in support of the findings, shows that the total expenditure of the plaintiff did not equal the rental value of the property during the time of his occupancy, and that the so-called permanent improvements were rather expenditures made to suit the convenience and taste of the occupant, and were not such as the law contemplates, of a character to enhance the value of the realty."
We need not stop to inquire whether the rule as to the quantity and character of evidence is the same in both executed and executory gifts. Assuming that the rule is the same in both classes of cases, appellant relies upon certain testimony given to the effect that the property had a rental value of four hundred dollars per year for the five years preceding the commencement of the action and that Mrs. Howard *Page 314 testified that it was worth that less taxes and expenditures, which she fixed at one hundred and fifty dollars per year, and that her family had made more than that out of it. Conceding this much, the evidence was that when the gift was made the property was practically unimproved, and to make it habitable and of any value as a home they built a dwelling, barn, and convenient outhouses and fenced the land. There was no evidence that it had any rental value prior to the making of these improvements. On the contrary, the only rental value shown was of the property after the Howards had improved it. Such was not the case in Burris v. Landers. The Howards lived upon the premises after making them suitable as a residence for thirty years under the belief that the property had been given to Mrs. Howard. The donor, Mrs. Bonynge, visited them frequently, and, of course, knew of their expending the money required to make the place capable of supporting the family. The gift having been satisfactorily established, we do not think the donee should be precluded from perfecting her title because the gross rental value for all these years would greatly exceed the cost of the improvements made by the donee, especially as this rental value is the result of these very expenditures.
"The rule may be considered as well settled," said Mr. Justice Henshaw, in the case cited, "that where a parol gift of real estate is made in praesenti, and the donee has entered under the gift, and has made permanent and valuable improvements upon the realty, and the circumstances are such that it would be unjust to the donee if he were thereafter to be deprived of the property by reason of imperfections in the gift, equity will treat the acts of the donor, together with the acts of the donee, as being such performance of the gift as will relieve the contract from the operation of the statute of frauds, and it will, under such circumstances, lend its assistance to the perfection of the donee's title." The evidence, we think, fully met the requirements of the rule as thus stated. The fact that the permanent and valuable improvements spoken of have given to the property a rental value it did not theretofore have is a false quantity. Otherwise the very thing equity requires to be done would defeat its object.
The petition is denied.
Hart, J., and Burnett, J., concurred. *Page 315