The opinion
on rehearing.
McCulloch, J. Mrs. Lina Davis, one of the appellants and one of the defendants below, on petition for rehearing, calls attention to the failure of the court to consider the questions raised by her cross . complaint, which was dismissed by the chancellor for want of equity.
The case was determined here upon the theory that the cross complaint was withdrawn before the trial below, but on further inspection of the -record we find that the same was renewed, as claimed in the petition for rehearing. We therefore proceed to determine the issues therein raised.
The renewal of the cross complaint was made at the time of the presentation of-the case below, and the court proceeded to a hearing without requiring an answer thereto. However, proof was taken directed to the issues thereby, and the failure of the cross complainant to require an answer is held to be a waiver thereof. Pembroke v. Logan, 71 Ark. 364 .
It is not proved that Cullen G. Cribbs assumed the payment of the incumbrance created by the lease to Reaves. W. H. Snipes, the husband of Cribb’s grantor, who leased the property to Reaves, made the assertion in his testimony that Cribbs assumed the obligation of carrying out the lease to Reaves, but on cross examination he qualified his statement by saying that he had no personal knowledge of the fact, and had no information concerning it except what his wife had told him. Mrs. Cribbs testified that at the time of the execution of the deed and afterwards, up to a short time before his death, Mr. Cribbs expressed his desire for the payment of the incumbrances on the property leased to Reaves out of his funds in bank. She says it was understood, when the deed was executed, that he would pay off the incum-brance, and afterwards he mentioned it to her several times.
No reference to the incumbrance is made in the trust deed executed by Cribbs, and no definite agreement concerning the same, either verbal or written, has been shown in the record. We are asked to hold that, by reason of the gift by Mr. Cribbs to his daughter, Mrs. Davis, of the real estate, an obligation on his part to remove the incumbrance thereon will be implied and enforced against his estate. In support of this proposition, we are cited to the doctrine stated in Thornton on Gifts, § 402, to the effect a “donee of land takes it without the incumbrances thereon,’’ though the donor “may, by express words or the like, give the land subject to the incumbrance, or make it a consideration of the gift.” The single case cited by the author does not support his statement of the law, and we have been unable to discover any decision holding to that rule. We cannot subscribe to that doctrine, "for it seems to us plain, upon principle, that no obligation to remove an incumbrance should be implied from a gift of the incumbered premises. We think it mere consonant with sound reason and justice that, in the absence of any express agreement to the contrary, the donee takes the property with the incumbrance, free from any obligation on the part of the donor to remove the same.
It is also contended by learned counsel that the testimony establishes an agreement on the part of Mr. Cribbs to pay off the incumbrance out of his funds in bank. If it be conceded that there was a consideration for the alleged agreement, or that the same without consideration was enforcible,, we think that the proof falls far short of such definite and'specific agreement as is sufficient to engraft upon the deed of gift executed by Mr. Cribbs an obligation to remove the incumbrance. It appears to us that his statements concerning that matter gave expression only to a parental design on his part which, doubtless he would have carried into effect if he had lived until the incumbrance had matured by expiration of the lease, but which is wholly insufficient to create an enforcible obligation. It lacks entirely the elements of a contract, such as calls for enforcement by a court of equity.
Courts cannot enforce such expression of benevolent designs, however meritorious the purpose may be, unless put in such definite shape that can be laid hold of with certainty. As no mention was made in the former judgment of this court considering the cross complaint, judgment will now be entered affirming the decree of the chancellor, in so far as the cross complaint wras dismissed for want of equity.