The complainant has wholly failed to-prove that Thomas Evans, the father, ever executed a deed of gift for the lands in controversy, -of any instrument in writing.evincing a gift from him to his son, Harris Smith Evans. This-defect of' proof: would- probably be fatal to the bill- independerá.) *402of all; other objections; for however clear the proof .may be, -to show that the complainant is entitled to equitable relief, yet, 'if his allegations do not correspond with his evidence, no decree can be rendered for him. Proof alone will not entitle a party to relief, but it requires both allegations and proof, and they must correspond.—Clements, Adm’r. v. Kellogg, 1 Ala. 330; Goodwin v. Lyon, 4 Por. 297; Morgan v. Crabb, 3 Por. 470; Dunn v. Walker & Parsons, 5 ib. 345. But independent of this objection, and assuming that the allegations of the bill are applicable to the evidence, I cannot doubt but that the ..chancellor correctly dismissed the bill. i.The only pretence of title in Harris •;.Smith Evans, .as shown by the evidence, can amount only to this, . that Thomas Evans, the father, made a parol gift of the lands •-.to his son, who took possession and made valuable improvements •«jpon them. Before we can. decree the lands, therefore, to bo sold as the property of the son, we must specifically execute the gift from the father to the son, which beyond doubt, was volun-untary and without consideration moving to the father at the timo it was made. In the case of Antrobus v. Smith, (12 Ves. 39) the Master of the Rolls p.ut the question to the counsel, do you ■ recollect any instance in w.hich a party was compelled to perfect a gift even in favor of a child. 1 The reply was, that the relief sought in that case did not-, require any act to be dono in order . to perfect it. In the decree that was rendered it appearing that : the gift was not complete,, the relief sought was refusc.d. In the , case of Ellison v. Ellison, (6 Ves. 656,) the distinction as to • volunteers was taken, and it Avas held that the assistance of the ... court could not be had without a consideration to constitute one ,. a cestui que trust, but if the act ,of the parties was complete, and the legal title absolutely convoyed, though without- consideration, then a court of equity would enforce the trust.. In the ...case of Jeffreys v. Jeffreys, (1 Craig & Phil. 138 and 141,) a father, by voluntary settlement, convoyed certain freehold, and covenanted to surrender certain copyhold estates to trustees, in >, trust for his daughter. He, afterwards devised a part, of the same lands to his. wife, who¡, after the death of the testator, -. was admitted to the copyhold estates. A bill was filed by the t daughter to have the trusts executed, ?.&nd to compel the widow to surrender the copyhold estate to which she had been admitted. u-Hí. chnncellor jaid that,, the .¡¡¿tie of th.e plaintijf to the..freehold *403vwas complete; and a decree, so far as the freehold Ayas concern- ,, ed, was.rendered, carrying into execution the trusts ; but in respect to the copyhold, which the father had .covenanted to surrender to the use of his daughter, the chancellor said, “ I have no doubt that the court will not execute a voluntary contract, and my impression is, that the principle is the same, whether the . complainant seeks the benefit of a.contract, a covenant, or a settlement.” , He, however, held up, the decision to examine the case of Ellis v. Nimmo, which had been pressed in the argu- . ment, but on a subsequent day he .said he saw no reason to change , his opinion.
I take it to he the settled law that if the gift is complete, and ■ the donor has parted with the legal title, that a court of equity will then execute the trust, because the relation of. trustee and „ cestui que trust is established by the act of the donor. But ,if . the gift is not complete, if the legal title still remains with- the , donor, and it requires another act to be done in order to cstab-lish the relation of trustee and cestui que trust, or to divest the donor of the legal title, a court of equity will never do that act, . or compel it to be done, without a consideration. The case of Forward v. Armstead, (12 Ala. 124,) is very analagous to the .. case now before us. There a father residing in Alabama wrote to his son, residing at the time in North Carolina, that if he would remove to this State, he would give him certain lands and slaves. The hill alleged that the son, confiding In the promise of the father, did break up and reprove to this State at great loss and expense, and that his father, in part performance of his promise, had put him in possession of the land and slaves, and that ho had opened a plantation and made valuable improvements on the land. This court, waiving the copsideration of the right pf the son to compensation for the improvements, held, that the promise of; the father, being merely voluntary, could not ho specifically enforced by a court of equity. Wo think this case is in .conformity with the settled rules of law, and is conclusive . to show that the lands in the present case could not be treated as the estate of Harris .Smith' Evans, and as such decreed to he . sold in payment pf his debts.
put it is contended that Harris Smith Evans was entitled fp , compensation for the improvements made upon the land under the , circumstances disclosed by the proof, which should be charge*! *404upon the land, that therefore the cause should hare been refers red to the register to take an account of the value of the improvements, and from the amount that might be ascertained to be due to him the complainant’s debt shoulclbave been satisfied-
I entertain no doubt but that the son would have been entitled to an account for the improvementsfor although a court of equity will not specifically enforce a parol gift of land, yet, if the donee enter and make improvements upon it, a' court of equity would never allow the donor to reclaim the possession of the land without making compensation for the improvements. This •would be to allow him to make profit by the labor and expense of the donee, when such labor and expense were bestowed under á promise that the donee should have the land. But the bill is not framed for this purpose, and the allegations are insufficient to warrant such relief. Independent, however, of this, it was admitted that Harris Smith Evans was indebted to his father’s estate in the sum of fifteen thousand dollars.’ In taking the account, of course,- this debt would have to bo accounted- for, before any thing could be decreed to the administrator of the son/ or to any of his creditors ; and, from the entire proof, I think it is manifest that the value of the improvements could not equal-this sum. A reference was therefore unneccessary; it could not-have benefited the complainant.
There is no error in the decree and it must be affirmed.-