The opinion of the court was delivered
by Woodward, J.— The court was of the opinion that all the^evidence was insufficient to create in the defendant such an equity as would take the case out of the Statute of Frauds, and to combat this opinion the counsel of the defendant are driven to the necessity of arguing, that exclusive possession in a vendee by parol, is not necessary to the perfection of his right. Suppose the father did declare a thousand times that he had bought the farm for William, and meant to give it to him, the point still remains to be established, that he had done so. He might have taken the deed directly to his son; he might have executed the purpose in his mind by an instrument in writing, any time before his death ; but he did neither. Then how is the fact of a parol gift or sale to be proved ?
Possession of land, taken and maintained, is an open and notorious fact, capable of proof by many witnesses, and about which mistakes are less common than when conversations are to be detailed by those who had no interest in understanding and remembering them, and hence the law insists upon it as a sine qua non, that he who makes title to land by parol, shall show a possession, taken and maintained, according to the title he sets up. If he cannot do this, he proves talk to no purpose. Words merely *409spoken, cannot be title to land whilst the Statute of Frauds and Perjuries lasts. The best of reasons, those that touch the perpetuity and happiness of the family and community, could be given, and have been many times given, for the rule ; but if they do not commend themselves to the understanding, there is the rule in the statute, Ita lex scrota est; there is but one way of answering that, which is to repeal it. True, the statute does not demand, possession in the vendee, because it reduces all parol estates to three year leases,-but as a mode of evading the harsh operation of the statute, and relieving-those who have no other relief,, the courts demand a clear and exclusive possession, not only as part performance of the parol contract, but as evidence that such a contract was ever made. It is a test of truth, proposed for the benefit of those who have a defective title to establish. And now we are asked to dispense with this test. The defendants cannot endure its application. There was no exclusive possession in the son. The father and mother lived and died on the land, which it is now said had been given or sold to the son by parol. Suppose we should yield the point that is demanded, and say, contrary to all the authorities, that exclusive possession was not necessary, what sort of a title would the defendant have ? No witness proves the parol bargain betw'een the father and the son. The declarations of the father, living in the memory of the neighborhood would be the title, and when that memory died out, the title would perish with it. A thousand years ago, our rude ancestry would have insisted on more than this. They would have required that a shoe be plucked off, or a twig, or a turf, or a door latch be delivered in sign of the bargain. With us, writing is as common as bargaining; and a statute requires transfers of land to be in writing; and yet we are urged to tolerate titles without a written word, or a visible symbol. From.the time of,the patriarchs, no nation that has recognized property in land, has trifled thus with boundaries and titles; and it is a desperate expectation, that the courts of the nineteenth century, held up to their duty by a legislative enactment, are going to relapse into comparative barbarism, and leave land titles to be proved by the most imperfect of all traditions, that of words. Another reason why the court did not consider this a case taken out of the statute, was, that improvements made, if not compensated by profits, could be readily compensated in damages, which was a good reason, and well sustained by authority, but wholly unnecessary, for the failure to take and maintain exclusive possession, was final and decisive against the defendants. ' ,
A point is started here, which does not appear to have been made in the court below. After the death of Thomas Wible, his son Henry applied to the Orphans’ Court for partition of this *410land, which William, the ancestor of the defendant, resisted, on the ground that the land belonged to him by virtue of the parol gift. On the 20th May, 1851, the Orphans’ Court ordered that an amicable ejectment be entered to try: which was done, and it resulted in a verdict in favor of William. This verdict, it is now said, concludes the right; and we are referred to the various and complicated legislation that has been had, on the effect of a recovery in ejectment, but we do not deem it necessary to inquire into the present state of our statute law on the subject, because we regard the ejectment found and tried under the order of the Orphans’ Court as nothing more than a feigned issue, designed to inform the conscience of that court on a matter of fact essential to their exercise of jurisdiction. The issue might have been in any other form, and imports no more in the form of ejectment, than it would in assumpsit upon a wager. The verdict in such eases is merely advisory; no judgment is entered upon it, and no conclusive effect can be predicated of it. It is like a verdict in an issue sent by the Chancellor to a court of law, which he may disregard, if he is not satisfied with it. 2 Daniel’s Chan. 1334, in note. If the record of that proceeding were a part of the evidence in this case, the court were in no error in saying that there was no evidence to bar the plaintiff; if it was not, then the question is raised here in the assignment of error.
On the whole, we think the answers of the court were discreet, and well sustained by authority; and the judgment is affirmed.
Lewis, C. J., dissented..