Johnston v. Johnston

i. specific ance: giá. An examination of the pleadings, evidence and arguments in these cases has brought us unitedly' to the conclusion that Robert C. Johnston has not established his claim to the land, and that- the report of the referee and the judgment of the District Court thereon must stand affirmed. The evidence is quite voluminous, and although not so much in direct conflict, as is often the case, yet the testimony of Joseph Johnston’s declarations as to his purpose to give to Robert C. the land in controversy, and the conclusion sought to be drawn therefrom* that he had done so, are inconsistent with the letters and conduct of Robert O. Johnston.

A discussion at length of the evidence would not probably be either satisfactory to the parties or useful .to the profession. It does not establish an executed intention by Joseph to give the land to Robert 0., nor that possession was taken or held under any supposed gift, nor that the improvements were made relying upon it. The evidence not only falls far short of that clear and satisfactory proof requisite under the law to justify a court of equity, upon parol evidence, to enforce a specific performance of an alleged parol gift of real estate, so as to take the absolute legal title from one party and place it in another, but it is really a matter of grave doubt whether a preponderance of the evidence is not with the defendant. See Lester v. *82Foxcraft et al., 1 Cole’s P. C., 108, and the notes of Hare and Wallace thereto, found in 1st Lead. Cas. in Eq. (vol. 1, 3d Am. ed.), 719, et seep

\n3mf¡aE: Upon the question as to the statement of the account for value of rent and improvements, it is probable we would originally have stated it somewhat differently from the referee. But upon this branch of the case, the finding of the referee must be regarded in an appellate court, the same as a verdict of a jury, which, it is well settled, can only be disturbed when it is clearly and manifestly against the weight of evidence. Under this rule, the finding of the referee must stand.

The judgment of the District Court is, therefore,

Affirmed.