Scranton Harrell brought complaint against Anthony Harrell, to recover a tract of land containing some thirty acres. Plaintiff is the son of the’defendant. It is alleged in the petition that in the year 1909 Anthony Harrell made a gift of thirty acres of land. In another paragraph it is alleged that in pursuance of the gift petitioner took possession of the land, cleared it and put it in cultivation, built houses upon it, dug wells, and built fences, all to the value of $750, and continued in possession of the land until December, 1914, paid taxes upon the property, and exercised ownership over it; that in December, 1914, plaintiff moved off of said land, but without any intention of abandoning his possession or ownership; and that the defendant wrongfully took possession of the land, and remains in possession. Petitioner prayed that defendant be required to surrender possession, and that the title to the land be decreed in him. The jury trying the case returned a verdict for the defendant. Plaintiff made a motion for a new trial; and that being overruled, he excepted.
The original motion for a new trial contains the usual grounds. In the amended motion error is assigned upon that part of the charge in which the court, stating the contentions of the plaintiff, instructed the jury that the plaintiff “sues to compel *547the defendant to make him a deed to the land in accordance with the alleged verbal agreement.” This charge was error. "While under the pleadings in the case it does not appear as clearly as it might have been made to do that the plaintiff was relying solely and absolutely upon section 4151 of the Civil Code, relating to presumptions of a gift, nevertheless it does appear from the petition that the plaintiff did rely upon that section, which declares that “ The exclusive possession by a child of lands belonging originally to the father, without payment of rent, for the space of seven years, shall create conclusive presumption of a gift;” and the case for the plaintiff by the evidence shows clearly and' beyond question that the plaintiff was relying on that section.
Other parts of the charge excepted to are appropriate where the plaintiff is relying upon the provisions of sections 4634 and 4636, relating to parol contracts for land, voluntary promises, and specific performance; 'but they should not have been given under the evidence in this case, where no specific performance is sought, but a recovery based upon the presumption arising under the provisions of § 4151. Holloway v. Hoard, 140 Ga. 380 (78 S. E. 928). No doubt the court was led into giving the charge here referred to, by certain allegations in the petition in reference to the making of improvements, which is not essential to a case based upon section 4151 of the Code.
Judgment reversed.
'All the Justices concur.