Counsel do not differ as to the legal or equitable rules and principles which must govern in the decision of this case. The substantial question is whether, under the testimony, the complainant is entitled to the .relief claimed by his bill, and this issue must be decided in favor of respondent. To refer to all the testimony, is entirely unnecessary, and especially so, when such reference would in this opinion, answer no valuable purpose. We content ourselves, therefore, with stating two grounds upon which the decree below may clearly be sustained. The first is a want of clearness in the proof as to the agreement, and ■the compliance therewith as set up in the bill. The legal title is in respondent. Complainant seeks to divest it by proof of a parol gift upon conditions, which he says have been complied with by him. To sustain these averments, *282when denied by the answer, the burden of proof is peculiarly upon him. If a party would take a case out of the statute of frauds, upon the ground of a part performance, it is indispensable that the parol contract, agreement, or gift should be established by clear, unequivocal and definite testimony ; and the acts claimed to be done thereunder, should be equally clear and definite, and referable exclusively to the said contract or gift. Equity as well as law, contemplates that all contracts relating to real estate, shall be evidenced by some writing signed by the party to be charged; and when it is sought to bring a case within any of the exceptions allowed to avoid the operation of the statute, the court should never be left to act upon conjectures, or upon proofs loose and indeterminate in their character. Story’s Eq. Jurisp. § 764, Noel v. Noel, 1 Iowa, 423. In this case, the proof is not only loose and indefinite as to the terms, conditions and character of the gift, but equally so as to the alleged compliance with such terms or conditions. But we are further of the opinion, from the testimony, that complainant voluntarily abandonéd the premises and his possession, and waived thereby all right or claim to a deed. The proof is that he sold the house built thereon, as also the rails, and left the land about nine months or a year before bringing this suit. This house, and the laying up of those rails, constituted substantially the improvements made by him. No sufficient reason is shown for this abandonment. If the proof establishes any gift, it shows it to have been upon condition that the son should take possession and live upon the land. Having failed, as far as we can see, without just cause, to comply with this condition, he is in no situation to demand a performance on the part of the father.
Decree affirmed.