Howard

The action is to quiet plaintiff's title to a certain forty-acre tract of land situated in Yolo County, to wit, the northeast quarter of the southeast quarter, section 20, township 10 north, range 2 east, M. D. B. M., and to have canceled a certain deed to the same land under which defendant claims title. The cause was tried by the court and plaintiff had findings and judgment in her favor. Defendant appeals from the judgment under the alternative method. It is alleged in the complaint that, on February 22, 1875, Rhoda S. Bonynge was the owner of said land and that on said day she "made a parol gift of the said tract of land to the said plaintiff herein, and stated to the said plaintiff that the said land should then and there be her property, and that she should immediately occupy the same; that acting upon the said gift, as aforesaid, the said plaintiff immediately took possession of the said tract of land, and ever since said date has been and now is in the exclusive possession thereof; that the said plaintiff so entered into and has ever since remained in the possession of the said premises with the knowledge, consent, and concurrence of the said Bonynge, and has made lasting…

Appellant seeks a rehearing upon the single proposition stated thus: "Assuming a parol gift has been established, the same is absolutely void and unenforceable, as the plaintiff's proof is not of that character which justifies a court of equity in invoking the equitable rule of estoppel in order to take the case out of the operation of the statute of frauds." Reliance is placed upon the reasoning in the case of Burris v. Landers, 114 Cal. 310 , [ 46 P. 162 ]. In that case "plaintiff's real claim was that he entered with knowledge and approval of Landers, and under Landers' promise that he would thereafter, upon demand, make him a deed, and that relying upon that promise, he made lasting and valuable improvements upon the property." Appellant concedes that a present gift was established from Mrs. Bonynge to Mrs. Howard, which, though defective in form, equity will perfect. Such was not the case of Burris v. Landers, of which the court said: "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." After stating the nature of the action the court said: "This, it will be noted, is a different…