[Whisenant v. Gordon.]

did not revest the legal title in Mrs. Whisenant, it constituted a binding agreement to reconvey, which the complainant and her assignee or vendee has the right to specifically enforce. The surrender by Mrs. Whisenant of her right to a support by defendant constituted a sufficient consideration, and having been placed in possession, this took the transaction out of the operation of the statute of frauds and rendered it binding.-Code, § 1732; Scott v. Griggs, 49 Ala. 185; McLure v. Tennille, 89 Ala. 572, 8 So. Rep. 60. (5.) Besides, the defense of the statute of frauds was not presented either by plea, answer or demurrer; and hence, if it was the intention of the parties to the cancellation to revest title in the complainant's vendor, based upon the consideration of the surrender by her of her right to a support, the court will enforce this intention though the statute of frauds if properly presented might have constituted a full defense.-Lewis v. Teal, 82 Ala. 288, 2 So. Rep. 903; Hughes v. Hatchett, 55 Ala. 539; Heflin v. Miller, 69 Ala. 334; Clark v. Taylor, 68 Ala. 453; Bolling v. Munchus, 65 Ala. 558; Phillips v. Adams, 70 Ala. 373; Bailey v. Irwin, 72 Ala. 505; Shakespeare v. Alba, 76 Ala. 351.

WALKER, J.-The parties to this suit claim the land in dispute under different conveyances from Mrs. Mary Whisenant. In October, 1877, she conveyed the land by deed to the appellant, who is her son, In October, 1881, she executed another conveyance of the same land to Mrs. Gordon, the appellee. It is not alleged or claimed that the appellant ever reconveyed the legal title to his mother. The claim is that by a parol agreement between them, made prior to the execution of the conveyance to Mrs. Gordon, the deed to the appellant was cancelled, and by him surrendered to his mother, who was restored to the possession of the property. Mrs. Gordon acquired possession of the land under the deed to her, and remained in possession for several years, and until after the death of Mrs. Whisenant. The appellant having recovered a judgment against the appellee in a statutory action of ejectment for the land, the bill in this case was filed by the appellee to restrain the execution of the judgment in favor of the appellant, and to compel him to convey the legal title to the appellee.

The legal title which was vested in the appellant by

[Whisenant v. Gordon,]

the execution and delivery of the conveyance to him has remained in him, as it could not be divested by the cancellation of that conveyance, and its redelivery to the grantor therein.-Bailey's Adm'r. v. Campbell, 82 Ala. 342, 2 South. Rep. 646; Smith v. Cockrell, 66 Ala. 64; Kimball v. Greig, 47 Ala. 230. The appellee insists that, though there has been no reconveyance of the legal title, yet there was a binding agreement for such reconveyance, under which Mrs. Whisenant was restored to possession of the land, and that this agreement should be specifically enforced in favor of the appellee as Mrs. Whisenant's vendee. The appellant denies that he consented to a cancellation of the conveyance to him, or that he agreed that the title to the land should be reinvested in his mother. There is no competent direct evidence of such consent or agreement. The most that can be said of the proof in support of the claim set up by the bill is that it establishes certain facts which point to the conclusion that the arrangement between Mrs. Whisenant and her son, which was evidenced by her deed to him, was not fully carried out, but was abandoned. The deed to the appellant recites as a consideration the payment by him of the sum of one dollar, and also the further consideration that he is to take care of the grantor, and furnish her house room, board, lodging, clothing, and medical attention when necessary during her lifetime. It appears from the evidence that Mrs. Whisenant removed from the land in dispute to the residence of the appellant about the time of the execution of her deed to him; that she lived with him between two and three years, when she left his residence, and thereafter lived elsewhere; that he redelivered the deed to her, and she had possession of it at the time of her execution of the conveyance to the appellee, when she delivered it to the latter; that after the appellant redelivered his deed to his mother, and she left his residence, he contributed but little towards her support; and that, with knowledge of the deed to the appellee, he permitted the latter to obtain and keep undisturbed possession of the land until after his mother's death. The facts here referred to indicate that Mrs. Whisenant did not continue to receive from the appellant the care and support stipulated for in her deed to him, and that when he ceased to furnish her a home, and after she made a deed of the same land to another

[Whisenant v. Gordon:]

person, he abandoned possession of the land until after her death. One witness, who appears from his own statement not to be on friendly terms with the appellant, testifies to conversations in which the appellant said that he had returned the deed to his mother; that he was tired of her; that she was troublesome, and he would. not be bothered with her for two such places; that he gave her back the deed, as she was wanting the land back to sell it or to make a support out of it herself. Another witness testified: "I have heard him [the defendant] say that he was not going to cultivate the land; that he had given her up the deed, and that he was not going to have anything more to do with it; and said also that he thought he had to pay for all he did for her; that she was troublesome and aggravating, and that he would never have anything more to do with her * * The defendant told me he had given back to his mother the deed because she was so much trouble that he did not want to be bothered with her. He stated to me that he intended never to have anything more to do with her or the land, and also stated that he would not be bothered with her for two such places, and that she might live five or six years longer, and that it would be worth more than the land to care for her if she did live that long. He thought he had about got pay for all he had done for her." Doubt is cast upon this testimony by the appellant's explicit denial that he had any such conversation, and by the testimony of several other witnesses to the effect that when this witness was examined in an unlawful detainer case between the same parties he gave a materially different version of the statements made by appellant to him.

The evidence above referred to is what must be relied on to support the conclusion that when the appellant handed his deed back to his mother he abandoned his claim to the land, and that it was understood between them that she should be the owner of the land from that time. But there are several considerations in the way. of accepting this conclusion with any confidence in its correctness. In the first place, even after rejecting a mass of incompetent evidence on both sides, we are still confronted with irreconcilable conflicts at every material point throughout the testimony. Furthermore, it appears that the appellant did not give up the land when

Whisenant v. Gordon.]

he handed his deed back to his mother, but retained possession of it by his tenant for a considerable time thereafter. There is no competent evidence to show that he knew of or consented to the mutilation of his deed by tearing off the signature and acknowledgement. There is evidence tending to show that before the conveyance was made to the appellee a message was sent to her by the appellant, warning her that if she bought the land from his mother she would buy a lawsuit; and it is plain that the appellee was informed of the prior conveyance to the appellant, and yet refrained from making any inquiry of him as to his alleged relinquishment of his claim; and also that she paid less than one-third of the value of the land, which is a circumstance tending to show that there was doubt as to the ability of the seller to convey a good title, and that it was not clearly understood that the appellant had abandoned his claim. The result of the examination of the record is that we find that the appellee relies upon an alleged agreement by the appellant that his mother should again become the owner of the land; that there is an entire absence of direct evidence of the terms of the alleged agreement or of the consideration to support it, and that the conclusion that there was any such agreement at all can be reached only by relying upon doubtful inferences from circumstances not established by clear and satisfactory proof. It can not be said that it plainly appears from the evidence that the appellant's act in handing his deed back to his mother, and her act in removing from her son's residence, were done in the performance of a definite agreement between them that the son should cease to be the owner of the property which had been conveyed to him, and that the mother should be restored to the ownership. The utmost effect that can be given to the evidence as to the conduct of the mother and son is to concede that it suggests the probability that there was some such understanding between them. It was not incumbent on the appellee to show that in the making of the alleged agreement by the appellant to reinvest his mother with the title the requirements of the statute of frauds were conformed to. Any objection because of such non-conformity was waived by the failure to interpose a defense on that ground, either by demurrer or answer. Shakespeare v. Alba, 76 Ala. 351. But the failure to

[Whisenant v. Gordon.]

plead the statute of frauds did rot relieve the appellee of the duty of furnishing the full measure of proof which is required to justify a decree for the specific enforcement of a contract for the sale or conveyance of land. The terms of the contract must be definitely alleged, and established as alleged by clear and satisfactory proof. If the evidence fails to prove the contract, or any of its terms are left in doubt or uncertainty, a specific performance will be refused. Courts will not, in such cases, grope their way on inconclusive probabilities, or grant relief on merely persuasive testimony. The evidence must be such as to produce a clear conviction of the existence and terms of the contract as alleged.—Carlisle v. Carlisle, 77 Ala. 339; Derrick v. Monette, 73 Ala. 75; Pike v. Pettus, 71 Ala. 98; Daniel v. Collins, 57 Ala. 625; Aday v. Echols, 18 Ala. 353; Bogan v. Daughdrill, 51 Ala. 312. Conveyances for the alienation of land are required to be in writing, and their execution must be accompanied by formalities, the observance of which is calculated to remove all uncertainty as to the grantor's intention to divest himself of the title. The provision of the statute on this subject would fail in its purpose to prevent the divestiture of title to land by any act of equivocal meaning, if the landowner could be charged with the duty to convey by evidence which leaves it in doubt or uncertainty whether or not he intended to bind himself by a contract to part with his title. The testimony in this case is so conflicting, and the claim that the appellant agreed that his mother should be reinvested with the title to the property in dispute is so dependent upon inferences from circumstances of doubtful import, that the evidence can not be regarded as so clearly establishing an agreement for a conveyance as to justify a decree for its specific enforcement.

The appellee does not occupy the position of a bona fide purchaser without notice of the prior conveyance to the appellant, for, though that conveyance had not been recorded, yet it is plain from the evidence that the appellee was informed of its existence when the deed of later date was made to her. There is no evidence to show that the appellee in making her purchase was influenced by any representation or admission made by the appellant, or that she acted on any assurance from him that he no longer claimed the property. There is