Burris v. Landers

Henshaw, J. The appeal is from the judgment, taken within sixty days after its rendition. The- evidence is brought up for review by a bill of exceptions. The action was brought by plaintiff against Amy Landers as administratrix, and William J. Landers as administrator, of the estate of Michael Landers, deceased. The complaint charged that Michael Landers was, upon the sixteenth day of April, 1883, the owner of a certain piece of land, a lot with twenty-five feet frontage by ninety-feet in depth, situated upon Shotwell street, in the city and county of San Francisco, upon which had been erected a dwelling-house. It then averred “ that in consideration of long-continued, faithful services of plaintiff to said Michael Landers, on said sixteenth day of April,-1883, and in his lifetime, the said Michael Landers made [313]a parol gift iu relation and in respect to said lot of land and the improvements thereon, whereby the said Landers promised and agreed to and with this plaintiff that if he, this plaintiff, would go into the possession and occupancy of said land and premises, hereinafter described, that he, the said Landers, would at any time thereafter, upon demand, when so requested, make a good and sufficient deed to this plaintiff of the legal title thereto/ That on said day, and subsequent to said agreement, and previous to the death of said Landers, this plaintiff, with the knowledge, consent, and concurrence of said Landers, took possession of said lot and premises and made lasting and valuable improvements thereon, paid the state, city, and county taxes thereon, and all charges for street improvements. That said Michael Landers died, as aforesaid, on the twentieth day of October, 1886, seised of the legal title to said lot of land, without having made a conveyance thereof to this plaintiff.”

A decree wras sought compelling the representatives of Landers, deceased, to execute a conveyance to plaintiff of the property in question.

It is claimed that the action is one in which the aid of a court of equity, may be invoked to compel due execution of a parol gift of land, but the complaint does not sufficiently state a cause of action for this purpose. It does not aver a gift of the land, but “a gift in relation and in respect to said lot of land whereby the said Landers promised and agreed to make a good and sufficient deed to plaintiff upon demand.” Under the complaint, which must govern plaintiff's right of recovery, a case is not pleaded of an attempted gift, defective in form, which, to prevent injustice upon the donee, equity will perfect. It is an effort simply to enforce a promise to make a gift, the execution of which was never attempted to be completed by deceased in his lifetime.