Dissenting:
If the affirmance of the judgment of the trial court may not be based upon other grounds than those set forth in the opinion of this court, I cannot concur therein.
The answer admitted the ownership of the land to be in plaintiff and defendant, and alleged a gift by plaintiff of his interest therein to the defendant. The replication denied the alleged gift. The question for determination was whether or not the plaintiff had made a gift of his interest in the land to defendant, and it devolved upon the latter to come forward with his proof in that regard. If the plaintiff’s interest in the land was not subject to gift by parol because of the statute of frauds, then defendant, showing only a gift by parol, had failed in his proof, and the finding and judgment of the trial court are in no wise supported by the evidence.
Furthermore, I cannot agree to the holding that because the record shows that defendant’s counsel asked a witness what improvements had been made on the ranch after plaintiff’s departure therefrom, and, upon objection by plaintiff’s, *390counsel, the witness was not permitted to answer, that plaintiff is thereby precluded from claiming in this court that the evidence in the record does not establish a gift of his interest in the land. If a parol gift of an interest in real property is good in equity only when valuable improvements have been made in reliance on the gift, then it is essential, if a pleader proposes to rely upon a parol gift of such property, to allege, not only the making of the gift, but also the making of valuable improvements in reliance on such gift.
In the case at bar, defendant's pleadings contain no allegation that he made improvements upon the land subsequent to the alleged gift, or at all. In the absence of such pleading the proof he offered was inadmissible, and was properly excluded from the record upon the objection of plaintiff.