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

decide upon the preponderance Of evil
dence, we might, perhaps, be war
ranted in saying that the money used
by Poindexter in the purchase of the
lot belonged to Mrs. Quarles or to her
and Halliday. But it is not thus that
the strong presumption arising from a
deed can be rebutted. There is no
doubt that a trust will ordinarily We
suit in favor of one whose money is
used by another in the purchase OF
lands, when a conveyance is taken 10
himself instead of to the person who
furnished the money; nor rs there any
doubt that the facts that create the
trust may be proved by parol. For a
long time the courts refused, and they
have always hesitated, to permit the
langua ge of a deed to be thus con-
tradicted and a title created contrary
to the statute of frauds. But while
admitting such evidence for the pur-
pose of creating this resulting trust,
the chancellor has always required
that it be clear and unequivocal.
The insecurity of titles that
would result from any other rule I'M
peratiyely requires that trusts arising
by operation of law should not be de-
clared upon any doubtful evidence, or
upon a mere preponderance of evil
dence. There should be no room for a
reasonable doubt as to the facts re-
lied on"
In a still later case the same court
said: Testimony as to verbal admlS-
Sions, of persons since dead, is to 'be
received with great caution, and when
ever it is attempted to prove resulting
trusts by virtue of such admissions, the
testimony must be clear, strong and
unequivOcal, and leave no room for
doubt in the minds of the chancellor
as to the existence of such a trust. And
the admissions should he supported by
other circumstances going also to show
the existence of the trust. Ringo VS..
Richardson, SO Mo- 1885,"
The same measure of proof is re-
CURED in a case such as this as is re-
quired to convert a deed absolute into
a mortgage, or to reform a. deed on
the ground of fraud, accident or mis-
take. The Supreme Court of the United
States, in the Maxwell land grant
cases, 121 U. S., saws, on page 3S1: 1--WE
take the general doctrine to be that,
when in a court of equity it is pro-
posed to set aside, to annul or to cor
rect a written instrument for fraud or
mistake in the execution of the fnstru-
ment itself, the Testimony on which this
is to be done must he clear, unequiVo-
cal and convincing" And in Rowland
VS.. Blake, 81 u. s., the rule is stated as
follows: I'm each case the burden rests
upon the moving party of overcoming
the strong presumption tharising from
the terms of a written instrument. If
the proofs are doubtful and unsatiSifafc-
tory, if there is a failure to overcome
this presumption by testimony entirely
plain and convincing beyond reason
able controversy, the writing will be
held to correctly express the meaning
of tine parties And in Allen VS.. Win
tra1sOTI is sod
129 and 100: $50 far as the personal
property conveyed to Winthrow is con-
cerned, it must Tbe admitted that a trust
may be established by paroi evidence;
but such evidence must be clear and
convincing, not doubtful, uncertain and
contradictory, as in this case. The evil
dence must consist of something more
parties" Many other cases might be
cited to the same effect, but the fore
going is deemed sufficient.
To reach the conclusion from the evil
dence in this case that the $4,000 adj
Yanced by the plaintiff to Emery in
July, 1889, was advanced, not as a loan
but as a, portion of the consideration or
| Mayfower lease then purchased 10y
Emery, would have to disregard every
we'll considered adjudication of the
courts in similar cases. To 50 hold
would be to establish a precedent which
would endanger the estates of all men,
If the plaintiff had the interest in
the property which he asserts, his loss
of Ut or his inability to recover can only
be attributed to his own carelessnes:
| and negligence. It Us much better tha,
he should sustain this loss heavy as
| it may be, than that the court Should
here set up a. precedent so dangerous
as would result from decreeing a trust
| herein.
I must hold, therefore, that the $4,000
advanced by the plaintiff to Emery
| was advanced as a. loan and THAT he
had no interest in any of the property
| in question. The defendants attorney
will prepare findings IN accordance
with this opinion and submit them tc
counsel on the other side before pre-,
senting them to- the court for settle
ment. MERRITT,
Judge.