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

Nayf1ower mine, and on July 5, 1898,
this note was cancelled and new notes
given by the plaintiff TO Keith, Kearns,
lVe1'S and Mrs. Judge, Emery'S co-oWn-
erS Of the MayfiOWer lease, for sums
aiggregating $33, 600 while no note was
given TO Emery for mis- portion of the
S42 900, viz, $8,400; and Mr.. Keith,
witness for Plaintiff, teStifieS in this
connection that at the time these notes
were given, Emery said TO the witness
that he was not going to ask Chambers
for note for his part, but would let it
go in settlement. Assuming Emery to
have made this statement precisely as
reembered by Mr.. Keith, / cannot see
that it strengthens the plaintiffs case.
The statement that he was not going
to ask the plaintiff for a note for his
part of the $4,000, would Indicate that
he considered that he was entitled to
ask for and receive a note If he chose
co demand it, and yet it is clear from
the evidence that at this date instead
OF the plaintiff owing him SIS, 400, ne was
indebted TO the plaintiff in q sum eX-
ceeding $780, 900, if tine plaintiffs conten-
tIon is we'll founded.
Again, at the time the note for the
$42, 900 was given on the last of October,
1891, Emery had in his hands belonging
to the plaintiff, if Plaintiff were a half
owner with him, more than $4,000.
Under these circunls tances ut is diff
cult to understand why the plaintiff
should have signed a, note for the whole
SAP, 900, instead of deducting the amount
due him from Emery, and giving notes
for the balance to the other 'cO-oWnerS
of the Mayflower.
Turning now to the original advance
Of the $4,000 by plaintiff to Emery, we
find it is noted upon the stub of the
check by which the same was adj
vanced, that this $4,000 was a loan
from plaintiff. 1t is also entered in
the books of plaintiff as loan to
Emery, and when the first $1,000 was
repaid by Emery in January, 1880, 1t
is entered on the books of plaintiff
as Payment on f(he note" Further
more. it appears from the testimony
of Mr.. Wilson, a witness for the de-
PENDANT, that in the spring or summer
of 1890, the plaintiff stated to witness
that he, plaintiff, had no interest in
the Mayflower lease. The plaintiff ad-
t.litS thsUt he made this statement.
Again, in December, 1891, the plain
tiff was called as a witness in a case
then on trial in this court, in which
Ezra Thompson and others were plains
tiffs. and Emery and others Defend
ants, and in which was involved the
ownership of the ore bodies found in
the May1oWer mine, and testified as
Q.-What interest have you in the
May1lower? A.-No interest.
Q.-None whatever? A-Well, I have
an indirect interest
Q.-Let's have it. A.-Well, I as,
sisted Mr.. Emery in buying his inter-
est
Q-You have a lien on his interest
for pay? A.-Wen, Mr.. Emery ex-
pected to come in and pay some OF
! these debts.
Q.-You have assisted him in getting
| that interest? Ayes, sir.
Q.-Any other interest? Al think
not.
1t is stated on behalf of plaintiff in
explanation of the entries on his books
respecting the $4,000, and of his state
ment to Wilson and of his testimony
above quoted, that there were reasons
why he did not desire it to be known
publicly that he had any interest in
| the Mayf1Cwer mine. Giving to this
explanation all the force that can be
claimed for it, and it simply illustrates
the danger of alleged admissions OF
one since deceased, as evidence. 1t
may we'll be that if Emery were now
| living. his alleged admissions. as testi-
| fed to by the witnesses, could be quite
as satisfactorily explained away.
WITHOUT reviewing the testimony
more in detail, am constrained to say
that it is entirely Inadequate to estajb-
! lish the plaintiffs case. 1t may be
| that he had the interest in this pro-
perry, which he is now claiming, but
| it is not sufficient that his claim is
probably we'll founded merely, neither
| is it sufficient that it be established
by "a bare preponderance of the evil
dence. The cases agree in holding
| That where it is attempted by parol
testimony to establish a resulting
trust in property in favor Of one Who
claims to have furnished the purchase
money, the evidence must be full
| clear and convincing. In many well
considered cases the rule is announced
that in such cases the evidence must
be such as to establish the trust be-
yond all reasonable doubt. L am not
| prepared TO announce so rigorous a
rule as this, nor is it necessary that
such a rule should be inVoked in this
case. To say the least OF 1T, the evil
dence in this case is open to opposing
presunptions, it is far from convinc.
ing. it is equivocal, it is neither cleal
nor satisfactory.
| In Clement VS.. Clement LIST. Jones
Eq. North Carolina, Judge Bartlett de-
livered the opinion of the court. There
as here the attempt was to establish
a, resulting trust in property after the
death of the alleged trustee in whose
name the title stood; and there, as
| here, the effort was to establish the
thrust chiefly by alleged declarations
and admissions Of the deceased. That
| learned Judge likened the case to one
| brought to convert a deed absolute in
TO a mortgage, and said; In botf
classes of cases the object of a court
of equity is the sanle-that is, TO con
vert a deed, absolute in its terms, into
a deed in trust or a mortgage, or SONS
other security for money, and to dc
this by the aid of parol testimony. Il
is in effect to make titles to property
which ought to be evidenced by solemn
instruments in writing-to depend
under certain circumstances, in some
degree, on the slippery memory of wit
nesses. The court would be faithles:
to the high trust conffded to it did il
not, in such cases, proceed with grea
caution, and require something more
than proof of the party's declaration:
to take from him his estate in whole
or in part. Such testimony is, as tina
eminent judge, Sir William Grant, ha!
! said, in all cases most unsatisfac
tory, on account Of the facility will
which it may be fabricated, and TIT
IimpossibiIity of contradicting it. Be
sides, the slightest mistake or failur,
of recollection may totally alter the eff
feet of Hhe declaration Hence tn,
rule that in addition to the proof o
declarations there must be proof o
facts and circumstances declares tn
deed inconsistent with the idea of al
absolute purchase by the party him
self"
In Midmer VS.. Midmer, 26til N. ]
Ed, the court say on page 304: "Th
effort always is in cases of this class
to overcome and destroy a regular
formal written title, by showing, b.
tevidence less solemn and trustworth!
than the instrument itself, that though
the deed says the purchase money wa
paid by A and the lands were con
j viewed TO him for his own use AM