delivered the opinion of the court:
The first question presented is : Was there a parol contract- made, part performed, which in equity should be enforced ? The bill shows a contract proper for the consideration of and enforcement in a court of chancery. It is alleged that Jacob Lorentz agreed with Perry Lorentz and his wife, that if they would move on to a certain tract of land, which he caused to be surveyed for their use, and would improve it, that he would convey it to Perry’s wife for life, remainder in fee to the children of said Perry and wife.
In Rowton v. Rowton, 1 H. & M., a coucract of this Syllabus 1. character was held by two of the judges and not denied by the others, who thought it not proved, to be founded on a consideration, and should, when part performed, be enforced in a court of equity. Judge Tucker said speaking of the contract: “What then was old Eowton’s promise ? ‘ If you will move down and settle upon the land; it shall be yours. I have already willed it to you, and I will never take it from you while I live.’ ‘Then’ said the son ‘I will move down,’ and he did so. This was a promise founded on a consideration, chargeable to him to whom the promise was made; and though no benefit should accrue to the father, the circumstance of its being attended on the part of son with a charge and expense made it binding on the father. The interpretation as understood by the son was, that he was to have an absolute estate in the land; for he expressly refused to move down and improve the land, unless his father would give him a right to it. ‘My son,’ said the father ‘I have willed it to you and will never take it from you while I live.’ ”
In Lobdell v. Lobdell, 36 N. Y. 327, it was held, and we think properly, that a parol agreement between father *774and son that on condition the son will‘enter upon a cer- ' tain tract of land and improve it the father will make him a deed for the same, and in pursuance of such agreement the son enters upon the land and occupies and improves it, is sustained by a sufficient consideration, and should be specifically performed. See also Baldenberg v. Warden, Supra. If such agreements could not be enforced in a court of equity, frauds might be perpetrated with impunity. A father might thus induce his son, who had the fullest confidence in him, to spend the flower of his life in making valuable improvements, and in a moment of displeasure with his son sweep it all from him; or he might have the intention to make the deed for the land, but be prevented by death.
Such contracts, before they can be enforced in a court Syllabus 2. of equity, must be established by competent and satisfactory proof, which must be clear, definite and certain. Is such a contract proved in this case ? The answer denies the making of sucha contract. There is only one witness in the case, whose testimony is on the subject of making the contract, all the other testimony of the plaintiffs relates to the declarations made by Jacob Lorentz. The one witness referred to is Jacob Lorentz, Jr., who says he was present at the time the plat of the land was made, and his father told him to examine the plat, and see if it represented the land he intended to give to Catharine Lorentz, the wife of Perry Lorentz, and her children. Witness asked him if he intended to give them the whole tract, “he said no; that he thought he could not give them the whole tract which contained three hundred and thirty-four acres, but that he intended to give them two hundred and fifty-four acres out of that tract.” Witness examined the plat and told his father it contained two hundred and fifty-four acres, and his father said it was all right.
There is not one word of testimony in the case to sustain the material allegation in the bill, that said Jacob Lorentz “agreed and undertook if the said Perry and *775bis wife and children would move upon the said land, occupy and improve it, so as to provide a living for his family, that he would convey the same to said Catharine for life with remainder to her children.” This is alleged as a part of the contract, and it is a most material part thereof; in it is shown the consideration for making it, and unless this material part is proved, the contract cannot be enforced. We do not think it is proved by the other facts and circumstances in the case. All the declarations that were made by the old gentleman might as well relate to a gift of the property, as to a contract to convey it.
But if it had been clearly shown by the proof that Perry Lorentz was induced to move on the land and make improvements, on the faith of an agreement that his father would convey it to his wife and children, there is evidence in the record that is clear and uncontradicted, that the contract was afterwards modified, as in June, 1862, about three years after Perry had moved on the land, his father did make a deed for a term of ten years to a trustee for the benefit of Perry’s wife and children, which they accepted, arid under which they held and occupied, not only the two hundred and fifty-four acres but two other tracts, for the full term of ten years, and that the plaintiffs never set up any claim to a conveyance in fee of the land until after said term had expired. Under these circumstances the claim for specific performance as prayed in the bill cannot be allowed.
But it was also claimed in the bill that a deed was actually made and acknowledged by Jacob Lorentz to the said Catherine and her children for said laud, and that a short time before his death the said Jacob directed said conveyance to be delivered to said Catherine; and the plaintiffs charge, that the acts directions and declarations of said Jacob in his last sickness just preceding his death amount to a delivery of said conveyance, and that at least the said conveyance constitutes such a written memorandum as would entitle said Catherine and her children to *776a conveyance of the said land. This charge in the bill is denied; and there is not the slightest proof in. the record, that Jacob Lorentz in his last sickness, or at any other time, directed such deed to be delivered to said Catharine. There arc declarations proved that such a conveyance was made; but what became of it there is no evidence. To rebut the evidence that any such conveyance was made, it is shown that Jacob Lorentz, in 1864 and 1865, by writings made by himself, referred to the two hundred and fifty-four acres of land as his, and unsold. The deed, if made, was never delivered, nor directed to be delivered. ' If the old gentleman made such deed, he had the right to destroy it before delivery. It is true that a court of equity would furnish its aid in making effective a gift of land by a father to a child, where the gift is evidenced by even an unsealed instrument, executed by the father and formally delivered to the child. Marling v. Marling, 9 W. Va. 75. And so a court of equity might lend its aid to compel the delivery of a deed for land to a child, which by the father had been formally made and acknowledged and placed in the hands of a third party to be so delivered to the child. But there is no proof in this ease that could show that any such gift was in fact made.
For the foregoing reasons the decree of the circuit court dismissing the bill with costs must be affirmed with costs and $30.00 damages.
The Other Judges Concurred.Decree Affirmed.