The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-20

plant, including the stock of the Sill
| yer King Mining company, and the
profits and dividends in said complaint
mentioned; and also denies that any
part or portion Of the profits or divi-
bends mentioned in said complaint as
having been paid to or received by
Emery in his lifetime was by him
paid to said plaintiff.
/ have carefully considered the evil
dence in the case and the law apple
able thereto. In view of the magni-
tude OF the interests involved in this
action, 1 feel that it is proper to state
at some length the reasons for the
conclusion which l am about to an,
nounce.
1t is needless to cite authority to
sustain the proposition: That where
one furnishes the whole or any ali
quot part of the purchase price of
real estate, taking the title thereto in
the name of another, a trust results
! by operation of law in favor of him
| VINO furnished the purchase price in
! proportion to the amount he SO fur,
nlshed 1t is also well settled that
such a trust is not within the statute
OF frauds, and may be established by
parol testimony.
In this case, there is no doubt that
Emery received from the plaintiff
81. GOO, or one-half of the sum paid by
him on the purchase of the said one
! fifth interest in the Mayfiower lease.
The principle question of fact involved
in the case is: whether this $4,000 was
furnished by the plaintiff as alleged in
the complaint as and for one-half
of the purchase money with a view TO
acquiring for himself, but in the name
of Emery, one-half of the interest pur-
chased by Emery; or, whether this
$4,000 was in reality a loan by the
plaintiff to Emery. IF the former,
then the plaintiff is entitled to the re-
lief which he demands; if the latter,
then ne has no interest in the
property mentioned in the COM
plant, and the defendant is
entitled to Judgment. AS 1 view the
evidence there is no middle ground.
In support of the alleged trust, the
plaintiff introduced a number of wit
nesses who testified, with more or less
fullnesS and precision, 10 admissions
claimed to have been made by Emery
al various times to the effect that the
plaintiff furnished the purchase money
| with which me, Emery, acquired his in
terest in, the Mayflower lease and that
the plaintiff was interested with him
| therein, and also in the Silver King
stock. | may say generally that these
witnesses are gentlemen of good stand-
ing in the community, and that their
| character and reputation for truth and
integrity are unquestioned. Most of
the alleged admissions introduced in
evidence were made long prior to the
time when the witnesses were called to
testify respecting them-some of them
more than five years before. AdmiS-
sions of a party against his own in
terest are clearly competent as eV1-
! dence against him or those claiming
under him; but such testimony is to
be weighed with caution in all cases.
Where the party whose admissions are
offered in evidence is dead, and the
witness is called 30 testify to con-
versation in which 1T is claimed the.
admission was made, after a great
lapse of time, the court should be es-
lpecially cautious in its consideration
of such evidence. No one can be I'M
mindful of its dangerous character,
and, unless the conduct OF the par
ties respecting the property concern
ling which the admissions are claimed
to have been made, is found to be con-
sistent with the alleged admissions,
the evidence in my judgement, no
matter what the character of the Wit
nessea may be, is entitled to but little
weight. Speaking of this subject, Mr..
GTeenleaf in his work on evidence,
Isays: with respect to all verbal adj
missions, it may be observed that they
ought to be received with great eau
ton. The evidence, consisting as 1t
does in the mere repetition of oral
statements, is subject to much imper-
lection and mistake; the party himself
either being nisinforned. or not haV-
ling clearly expressed his own mean
ling, or the witness having nisunder-
stood him. 1t frequently happens, al
so, that the witness, by unintention-
ally altering d few of the expressions
really used, gives an effect to the
statement completely at variance with
what the party. actually did say.
LIST. Greenleaf, Sec. 200.
Boyd VS. Mclean, 1st John, ch., $50.
Midmer vs. NIidmer, 26 II. j., eq.,
800.
In this case, the alleged admissions
of Emery find little, il any, corroDOra-
ton in the conduct of either himself
Tor the plaintiff with respect to the
property in question; while there is
much in the conduct of the plaintiff
as well as OF Emery, as disclosed by
the evidence, which is quite incon-
sistent with these alleged admissions,
and with the contention that plaintiff
had any interest in the property. 1t is
shown that Emery had received in
profits and dividends from the pro-
$40, 000 The first of these dividends
was received by MIN early in January
lS90. the last few days before his
death. The dates Of the ether divi-
denyls received by him We're as follows:
In 1890. January 18th, 24th and 29th.
February 18th and nth. March 18th.
May 21st, June Goth, and July 14th.
In 1S91-M2rch 9TH, September 18th
ana 21st and October 10th.
IN 1S92-ApriI 18th and 23rd. May
31st, June 9th and August 18TH.
In 18g4-January 2oth, March 22nd
and May 18th.
: It also appears from the evidence
that in January, 1890, Emery paid
plaintiff s., 000, and in March OF the
same year, $1,000 (making the $4,000
) he had received from the plaintiff
thereafter.
Emery appears TO have dealt with
this property to the time OF his death
as his own exclusively, receiving ana
apprcpriating TO his own use, as he
saw fit, ell profits and dividends arising
therefrom. and this, too, 50 far as the
evidence discioses, without any protest
from The plaintiff. 1t is true That in
April, 1892, the plaintiff received from
Emery $751; 600 10y check enclosed in q. let
ter addressed to the plaintiff and dated
April %, 1892, and in which Emery
writes:
Dear Sir:-Enclosing draft No. 1887
Richardson. cashier. on Wells, Fargo 6
Co., for $1,000, payable to your order
We completed the purchase of the Sill
Yer King yesterday and paid chem
their money, and also declared a divi.
dend Of $4,000 to each fifth interest
You probably have more need fol
money Than I nave, 50 I sent You thC
major portion. Yours truly,
"a 5. EMERY"
At this date, If the plaintiff had tbs
interest in the property which is claim
ed for him, there was in Emery's hard:
Crf- 'f7iIyidtsr1f]S and rTOfitS belonging II