delivered the opinion of the Court.
There is no dispute in this case with regard to the legal propositions asserted in the opinion of the Circuit Court, they are abundantly supported by authority, and have been repeatedly recognized and enforced by this Court. The principle is well established, that if one person expends his money in making beneficial improvements on the land of another, upon the faith of a parol contract by the latter to convey; where specific execution of the contract cannot be decreed, because of the uncertainty in the proof of its terms, a Court of Equity will decree compensation to the extent of the value of such improvements, and in some cases, as in King’s heirs vs. Thompson and wife, 9 Peters, 204, will grant relief hy declaring the same to be an equitable lien upon the property.
On this principle, the decree of the Circuit Court in this case was passed, but after a careful examination of the record, we are of opinion that the facts as disclosed by the pleadings and proof do not bring it within that principle.
To entitle the complainant to the relief sought, it was incumbent upon him to prove that there was an agreement or understanding between Eckels and MoNamee, either that the property in question, should bo conveyed to the latter, or that he should have some interest or estate therein in his own right, or to use the language of the Supreme Court in King’s heirs vs. Thompson, “that it should be in some manner possessed and owned by *178him,” and that upon the faith of such understanding or agreement, McNamee was induced to expend his money-in erecting the house.
There is no sufficient proof of any such agreement or understanding ; on the contrary, the evidence is clear and uncontradicted, that the only understanding between the parties was, that when the house was completed, the property should be conveyed to the wife of McNamee, who was the daughter of Eckels.
This is distinctly stated not only in the answers of Eckels and McNamee, which being under oath and responsive to the bill, must he taken as proof, but it is also positively stated by both of them in their testimony taken under the commission.
This is the only direct testimony found in the record, with respect to the understanding between the parties, upon the faith of which the money was expended in the erection of the house. It is confirmed by the' fact, proved in the case, that in 1846, after the house was completed,' Eckels procured a deed to be prepared by Mr. McKaig, his attorney, conveying the property to Mrs. McNamee and her heirs.
It is true that the deed was not executed; McNamee objecting to it, and desiring the deed to be made to himself. He seems to have entertained some hope or expectation that the property would be conveyed to him, but that is not sufficient, unless it was shown that there was some understanding or agreement on the part of Eckels to that effect, upon which his expectations were founded; and both he and Eckels testify that there was none.
The facts and circumstances relied on by the complainant, to countervail this positive testimony, are as follows:
1st. It is proved by several witnesses, mechanics engaged in building the house, that they were paid by McNamee; hut that fact is consistent with the original understanding as stated by Eckels, that the property was *179to be improved at the joint expense of himself and Mc-Namee, and should be conveyed to McNamee’s wife to secure her a home.
2d. The possession of the property by McNamee, and the receipt of the rents by him, are relied on by the complainant as evidence that his title was acknowledged by Eckels; but as husband, he would have been entitled to the possession of the property, and the pernancy of the rents and profits, even if the legal estate had been vested in Mrs. McNamee, and these are not inconsistent with the fact that the property was intended to be conveyed to her.
3rd. The execution of the mortgage by McNamee to the complainant in 1852, is relied upon as evidence of his claiming and owning some right or estate in the property. Unquestionably if this were a case between the complainant mortgagee and McNamee, he would be estopped from asserting that he had no title at the time of the mortgage; but Eckels was not a party to the mortgage, nor was he in any manner connected with it, his rights are therefore not affected by it. Although the legal title to the property remained in him, and the mortgagee had constructive notice thereof by the public records, it does not appear that the latter made any inquiry of him with respect to the rights of McNamee in the property. Mrs. McNamee was not a party to the mortgage, and her rights are not impaired or affected thereby. She is entitled to claim the benefit of the agreement made between her husband and Eckels, whereby the ownership of the property was to be secured to her.
The contract was one resting upon a good and valuable consideration, and upon the evidence furnished in this cause she* would be entitled to have it specifically performed, and upon proper proceedings for that purpose, a Court of Chancery would decree that the property should be conveyed to her.
*180(Decided 20th December, 1872.)Neither the complainant as mortgagee, nor the creditors of McNamee, have any claim as against her that the property should he sold to pay McNamee’s debts. The mortgage was not executed till several years after the agreement for her benefit was made: and it does not appear that any debts of McNamee existed at the time the agreement between him and Eckels was made, and the money was expended by him in making the improvement ; it is therefore free from all impeachment on the ground of being made in fraud of creditors.
For the reasons we have stated, the decree of the Circuit Court will he reversed and the hill dismissed, hut without costs'.
Decree reversed.