delivered the opinion of the court, March 3, 1884.
We cannot agree to adopt the conclusion arrived at in this case by the learned auditor anil court below. The application is to enforce Vagainst the estate of the decedent an alleged parol contract, for the sale or gift of a tract of some sevent}'’five acres of land in Fox township, Elk county, by Isaac Coleman, deceased, in his lifetime, to his grandson, Charles A. Brown. In order to relieve a case thus presented from .the prohibition. of the Statute of Frauds and Perjuries, certain requisites must be, not inferentially, but clearly set out and proved. There must first of all be a positive and specific contract made by the parties to and with each other, and, as it is said, when, they are face to face; in other words, both must be clearly and expressly bound by and to the terms of the agreement. There must be, especially under such an arrangement
Admitting, however, for argument’s sake, that there was an oral agreement such as that alleged in the petition, there is no proof of its performance. It is idle to say that the furnishing of two or three sacks of flour, an occasional quarter of tea, and the hauling of some wood and coal for the use of these old people, was the performance of a contract of maintenance, and especially as the little he did furnish was far more than paid for by the purchase money which he received from the sale made by his grandfather to Jacob Bordorocco. So far as we can gather from the testimony, Brown was not so circumstanced as to be able to support any others than those of his own family. He was in debt; his grandfather gave him a home, and was willing to give him a chance of paying for it in the manner provided in his first will, but when it was.
The conclusion then of this whole matter is, that the plaintiff' had no standing to maintain his bill in the court below; that the conclusions of the auditor were not sustained by the facts of the case, and that the court erred in ordering the administrator to execute and deliver a deed to the petitioner.
The decree of the court below is now reversed and set aside; the petition dismissed, and the appellee ordered to pay the costs.