The opinion of the court was delivered by
Lowrie, J.This is another of that illegitimate or suspected brood that is continually being hatched out of the exceptions to the statute of frauds, and giving rise and permanence to family feuds. Much that we have said in Poorman v. Kilgore, supra, 365, is so relevant here, that we can refer to that opinion without repeating it. This case, however, presents one feature that was not in that, and we dispose of it now as first in order.
The defendant relies on two inconsistent equitable titles : one being that the land was bought for him with his own money, and that therefore the equitable title resulted to him, though the legal title was in his father; and the other that the land was a gift to *382him by his father. His defence is a claim in equity for specific performance of the trust or gift, by transferring to him the legal title; how, then, does he stand in court ?
He says, in effect, My father has the only title that, in strict law, can be taken notice of, but he ought, in equity, to convey it to me. I do not exactly know why he ought to do so; but he bought it for me with my money, or he gave it to me, I cannot say which. Both cannot be true; but I ask the court to hear me try to prove both, and to give me the conveyance on the ground which I shall come nearest to proving, or to give it to me because some of the jury may say one, and some the other, is the true ground, and because, therefore, neither of them is found true.
Such a claim, if distinctly set out, would be rejected on first presentation. It is only when its incongruity is covered up in a mass of conflicting evidence that it could be suffered to pass. The essential grounds of his claim are evidence that he has no honest claim at all. If this land was given to him, or bought for him with his money, he must have known it, and which way it was. To say both is false. To say that he does not know which, is to admit that neither is true. In his own opinion one of them may be true, and only one, and on that he must rely. Equity does not lend its aid to experiments on legal titles, in favour of those who can present no distinct and consistent claim. It sanctions no war of which the manifesto is false on its face.
This cause must therefore go back for a new trial, and for this reason we have desired to decide whether there is any sufficient evidence of either claim to justify a decree for a specific performance ; but we cannot. The defendant’s claims are contradictory of each other, and so is his evidence, and we cannot possibly say how it will appear when he elects to stand'upon a claim that will have the appearance of sincerity. We must therefore limit ourselves to an indication of the principles of evidence which are distinctly raised by the case as it was tried, to the exclusion of those which have only a probability of arising.
Though the father and son were both of the same name, yet it seems too plain for doubt that the father bought and paid for the land, and took the deed to himself. That he wanted to let the son have the use of it, fully accounts for all the other facts connected with the purchase. If the son claims that in equity it is his, he must elect and prove one or the other ground of his claim. In one case the gift, in the other the purchase with his money, must be shown. The furnishing of the money for the purpose, or the gift of the land, one or the other of these is the principal fact of his case, and without it all else is worthless; and if it could be conveniently done, all else ought to be excluded until the principal fact should sufficiently appear, and this must be by evidence going directly to the fact: Hill on Trustees 94.
*383The possession of the land by the son does not tend to prove either of them, for this is sufficiently accounted for by the relationship of the parties. The payment of the taxes is quite as worthless, for sons always pay the taxes of the land of which their father gives them the use, or they ought to do so. If it was taxed in the son’s name, this is fully accounted for by the use, and moreover this is the proper form of taxation, when the son and not the father is to be personally charged with the tax. That the son had, or probably had, means to buy land, does not tend to prove that he did buy any, or furnished the money to do it. If these facts were clearly the other way, they would be strong evidence against the son’s claim, because they would be in direct hostility to it; but none of them are inconsistent with a use by the son of the land of his father.
The fact that the other sons were on other farms of their father’s, and paid rent for them, while this son paid none, is fully accounted for by the state of this farm when the defendant got it, and by his own evidence here that it was not worth over $30 a year, and that he did not raise enough to keep him. Without this, it is certainly no evidence of the principal fact — the gift or the furnishing of the money — though it might, if otherwise unaccounted for, tend to corroborate legitimate evidence of such principal fact.
Nor do improvements tend directly to establish the principal fact; and such improvements as are in evidence here, would have the very smallest weight as corroborating evidence of it. A small frame house, a log barn, and two log, one story, slab roof cabins, erected with the assistance of the father, and principally of materials got on the place, constitute the whole of them; and their value, even as corroborating evidence, seems to be more than counterbalanced by the miserable state in which he kept the place. If valuable and careful improvements are some evidence corroborative of a claim to more than a mere estate at will, then careless cultivation and merely essential improvements must he evidence the other way, unless when accounted for by the laziness of the tenant.
When a father puts his son on a farm, with the expectation of giving it to him some day, the son is not like to an ordinary tenant at will; for his relationship to the owner places him in a higher position, not as to the legal title, but as to his hopes, and consequently as to his inducements to improve. We naturally expect him to deal with the place very differently from what a stranger would do. He improves it because he expects that the justice of his father will give him the benefit of his improvements. And in making them, he is almost always aided by his father and the rest of the family, without any accounts being kept; and this shows very clearly their family character, and excludes them from the *384supervision of tbe law. In the very nature of these family transactions, such improvements are not evidence of a gift of tbe land; and no matter how unjustly a father may seem afterwards to have acted to his son, or how unfortunate it may be for him that his father died without carrying out his intentions, we cannot correct the mischief by giving the son the land. Mischief though it be, it is slight and temporary compared with the evils which would be caused to families, if the law should hold out inducements to litigation as a means of correcting such parental errors.
Let the family bond and relations stand as sacred as is possible against the intermeddling of the state. It is the fundamental institution upon which the state, as a social organization, depends; and if this, by its legislation or jurisprudence, gives encouragement to family strife, it begets demoralization in the very elements of' its own life. If it should test the acts and intercourse of the family by the same rules as it does those of strangers, then the family relation is struck down when the law comes in to judge; and there must be the same circumspection and mistrust in the intercourse of parent and child, as there is between strangers. If we have not intelligence enough to appreciate the value and the duty' of union of act and feeling, either in church or state, let us, at least, respect the family instinct so far that we may always have , this single element of social union to fall back upon, when inclined to despondency on account of the wide and multiplied divisions to which society is subject.!
The error in the evidence of Kepner’s pardon being admitted, will be avoided on the next trial.
Judgment reversed and a new trial awarded.
Lewis, C. J., and Black, J., dissented.