Knight v. Stroud

• Decision Date: 15 April 1949
• Docket Number: 16207.
• Citation: 53 S.E.2d 72,214 S.C. 437
• Parties: KNIGHT et al. v. STROUD et al.
• Court: South Carolina Supreme Court

53 S.E.2d 72

214 S.C. 437

KNIGHT et al. v. STROUD et al.

No. 16207.

Supreme Court of South Carolina

April 15, 1949

James E. Leppard and William P. Gulledge, both of Chesterfield, for appellants.

George K. Laney, of Chesterfield, for respondents.

BAKER, Chief Justice.

This is the second appeal in this case. The opinion in the first appeal is reported in 212 S.C. 39, 46 S.E.2d 169, 170; and merely settled that the defense of the respondents here (defendants) was 'a purely equitable defense in the nature of an equitable estoppel, and should be referred or tried by the court as an equitable issue.'

The complaint of the appellants, as executors of the last will and testament of W. S. Huggins, deceased, alleges that at the time of the death of the testator, on October 20, 1944, he was seized in fee and in the lawful possession of a tract of and situate in Chesterfield County, South Carolina containing two hundred and twenty-one (221) acres; that since the death of the testator, the respondents entered into the possession of said land, and have since withheld the possession thereof from the appellants, who, under the terms of the Will of the said W. S. Huggins, deceased, are required to sell same and to distribute the proceeds of such sale as therein directed.

The answer of the respondents set up a claim that W. S. Huggins in his lifetime made a parol gift of sixty (60) acres of this two hundred and twenty-one (221) acre tract of land to the respondent, Nealie Stroud, who, it is alleged is the daughter of W. S. Huggins, and that she was in the possession of the same as owner before and at the time of the date of the Will of W. S. Huggins, and before and at the time of his death and that W. S. Huggins put her in the possession where she and her family have continuously resided thereon since she was placed in possession.

The issue raised by the answer of the respondent Nealie Stroud, was referred to the Master for Chesterfield County to take and report the testimony. (It was from this order of reference that the first appeal was prosecuted.)

The Master, in due time, took, and reported the testimony to the Court of Common Pleas; and the Honorable J. Woodrow Lewis Circuit Judge, after studying the testimony, and hearing arguments of counsel, held in effect: (1) That W. S. Huggins made a parol gift of sixty (60) acres of the two hundred and twenty-one (221) acres of land to the respondent, Nealie Stroud. (2) That during the life of W. S. Huggins, and relying upon the parol gift, the respondent, Nealie Stroud, made substantial and valuable permanent improvements on the sixty (60) acres of land. (3) That the respondent, Nealie Stroud, was placed and remained in the possession of the sixty (60) acres of land under the parol gift. (4) That the making of substantial and valuable permanent improvements upon the said sixty (60) acres of the tract of land involved, after the alleged parol gift thereof and during the life of W. S. Huggins, took the alleged parol gift of said land out of the operation of the Statute of Frauds. (5) That the respondent, Nealie Stroud, is the owner of sixty (60) acres of the two hundred and twenty-one (221) acre tract of land here involved. (If W. S. Huggins conveyed to his son, Brooks Huggins, 116 acres of the original tract of land conveyed to W. S. Huggins by Anna M. Williamson, et al., then the tract of land out of which it is sought to carve 60 acres, contains not 221 acres, as all parties to this action have treated it, and as did W. S. Huggins in making his Will, but only 211.62 acres. However, this is immaterial to a decision of the issues.)

It is from such holdings of Judge Lewis in his order dated July 14, 1948, that this appeal is here; and to pass upon the issues raised by the appeal, we will have to summarize the testimony. But prior to entering upon a statement and discussion of the facts, the law applicable to the establishment of a parol gift of land and the enforcement of such parol gift in a Court of Equity should be stated.

A parol gift of land can be established only by clear and convincing testimony, and unless possession of the land is delivered or taken in pursuance of the gift thereby taking such parol gift out of the statute of frauds, evidence of the parol gift is inadmissible.

Even as to personal property, to constitute a gift, there must be an actual or constructive delivery of possession, so as to confer a right of present enjoyment. 'If the donor delivers a chattel to one, to be taken possession of a year hence; this is nothing more than a voluntary undertaking to give it at that time, and cannot be enforced either as a gift, or as a contract.' There can be no such thing as a parol gift commencing in futuro. Pitts v. Mangum, 2 Bailey 588.

Quoting from Caldwell, Executor, v. Williams et al., Bailey's Eq., 175: 'It is hardly necessary to say, that a parol gift of land transfers no right. In general, evidence of such gift, is not admissible, although it has been received, in particular cases, to shew the character of the subsequent possession. Then, regarding it as an agreement to convey, which is sought to be enforced on the ground of part performance, no agreement can be enforced, either in law, or in equity, which is not founded on a consideration. * * *'

The prevailing doctrine, and the applicable law of this State, is stated as the general law in 24 Am.Jur., Gifts, Section 68, as follows: 'It is well settled that a conveyance of land to be valid at law must be by deed under seal, but in equity a good right and title may be given * * * by parol. * * * a parol gift of land is on the same footing as a parol sale of land, and in order to take a parol gift of land out of the statute of frauds possession must be taken in pursuance of the gift, and as a further condition to the consummation of the equitable right and title, the donee must have made improvements of a valuable and permanent character, induced thereto by the promise to give the land. When these conditions and considerations have followed, the performance of the promise, although by parol, can be enforced in equity, and the donee becomes entitled to specific performance. * * * The right to specific performance, after going upon the land and making improvements, is especially favored in the case of a parol gift from a parent to a child.

'Mere possession and the making of some improvements, however, do not dispense with the necessity of producing distinct proof of the principal fact--that is that there was a gift. Even if there actually has been a gift, the donee is not entitled to the aid of equity when the improvements are slight and not of permanent value.'

A similar statement of the law governing the enforcement in equity of a parol gift of land will be found in 38 C.J.S., Gifts, § 57.

Of course, the necessity of proving the making of valuable and permanent improvements on the land in reliance upon the gift is more in the nature of equitable estoppel.

When the respondents first sought to introduce testimony tending to prove the parol gift of this land, the appellants objected thereto on the ground that it was incompetent under the statute of frauds, but conceded that such line of testimony would be competent after evidence had been introduced to show performance which would take it out of the said statute. It was understood that this objection to the testimony would continue throughout the reference without being repeated. Thereafter the respondents introduced evidence to prove that they entered into possession of a house, and some land surrounding the house on the 221 acre tract of land, but as sharecroppers of W. S. Huggins, the appellants' testate, for the years, 1943 and 1944, the only years they were in the possession of any of the land here involved prior to the death of said W. S. Huggins; and that while sharecropping this land, the majority of the land claimed having been theretofore cultivated for only two years and was therefore known as 'new ground,' cut bushes and dug up and removed grubs or roots and stumps, repaired some terraces, and made other inconsequential improvements thereto. No further objection was made, except in one instance, to testimony offered to prove the parol gift, which was probably unnecessary under the continuing objection which had been made, but there was also no motion made at the conclusion of respondents' testimony to strike out such testimony as being inadmissible by reason of the nature of the possession shown. However, the nature of the possession of the respondents and the nature of the improvements made to the land preclude the claim that this possession and the improvements made admissible testimony of a parol gift of the land which was clearly inadmissible under the statute of frauds. And, it follows that if the testimony in behalf of the respondents tending to prove a parol gift from the appellants' testator to the respondent, Nealie Stroud was inadmissible, then the entire defense of the respondents falls.

But granting the admissibility of the testimony, and giving full weight thereto, it would be a most dangerous precedent to set to hold that the respondents have thereby established a parol gift of the land they claim, or that is the land and premises claimed by the respondent, Nealie Stroud, enforceable by a Court of Equity.

Before further reference is made to the testimony relied upon to establish a parol gift, and its enforceability, it is proper to state that we conclude, as did the Circuit Judge, that Nealie Stroud was the illegitimate daughter of W. S. Huggins and that she lived in his home and was treated as one of his children from the time she was about four years of age until she was married to the respondent, Calvin Stroud, in...