The Portland daily press., 1900-08-27
In A PORTLAND CASE.
Rescript Received from the Law Court
ON Saturday.


A rescript in Portland case was handed
down from the law court Saturday, as
follows:
Cumberland, IS,
John r. Proctor, in equity, VS.. EDWARD
M. Rand trustee. ReScr1pt.
WisWell, j. The decision Of single
Justice upon matters of fact in an equity
hearing should not be reversed unless IL
clearly appears that such decision Is
wrong. The burden to show the error
falls 1pon the appellant. He must show
the decree appealed from to be clearly
wrong; otherwise it will be affirmed.
Held; in this case, that the appellant
has failed to sustain this burdens and
that, on the contrary, the finding OF
facts by the court below Is amply sus-
Uained by the evidence in the case.
Upon a bill to enforce an express ana
resulting trust in land the appellant al
legged that at the time OF the purchase
and conveyance Of the lot in question, ne
made one half OF the cash payment; that
the other half was made by John w.
Lane, the defendants testator; that SUB
sequently the income received from the
land was shared by them equally; that
payment upon the note and mortgage
given back by Lane, to secure part OF
the purchase price were made from the
income of the land and by CONT BUTTONS
equally made by them.
Thereupon, the appellant claims that
trust resulted in his favor by 1mpllca-
ton of law as to one half In common OF
the promises, sand that defendants testa-
tor became seized thereof In trust for
him. He further alleges in his bill that
Lane made written declaratlonslot TRUST,
on three different dates in which he &C
knoWledged the trust. The defendant In
J his answer denied all the important ale
cations relied upon by the plaintiff.
At the hearing before a single justice,
upon bill, answer, replication and proof,
the appellant introduced evidence tend
] ing to prove the eX1Stance OF trust IN
his favor, both as resulting by 1mpl1ca-
tions of law, and by reason OF the declar-
atiOns of trust made by the defendants
testator. The Justice who heard the cause
did not decide whether or not the facts
relied upon by the appellant did create
trust in his favor, but decided THAT what
ever rights the appellant may have had
earlier in or to this property, either as
beneficiary or otherwise, had been Yolun-
tatriIy released and abandoned by him
on or before June 1, 1889, In and by V1r-
tue of a new arrangement with the de-
PENDANT S testator. A decree was conse
quently rendered by him dismissing the
bill.
Assuming that the evidence intro
duced by the appellant was sufficient to
show that trust had once existed In his
favor as toIOne undivided half of the prop
] erty in question, 1T is considered by the
court that the evidence in the case, re-
I0rToQ l6Q2bn III bH6 Op4u4Ou AO41y
sustains this finding of fact, and war
rants the decree dismissing the bill.
No question is raised by the pla1ntl1f,
and 1t is unnecessary to decide, as TO
what extent the acts and conduct OF the
trustee and the cestui que trust, they be-
ing sui juris, are competent for the pur-
pose of showing that trust, which had
once existed, had been voluntarily re-
linquished by the cestui que trust in and
in consideration of some subsequent
transaction between them, because the
acts and conduct of the appellant in this
case subsequent to June I, 1899, and the
reliance thereon by the defendant, as
stated in the opinion, are sufficient to
stop the appellant from denying that
he had SO relinquished his equitable in
terest in his property, whatever that IN
terest may have been.
The appellant offered in evidence one
of the memoranda, or declarations OF
trust, which had an unsigned paper
prepared after the death of Lane and at
tached by muc1lage, and containing,
|, among other things an agreement that
this property should be held by the de-
PENDANT as trustee, etc, and also an as
signment to a third party of all the APP
pellant's right, title and interest In ana
to the within agreement and declaration
to which this is annexed and the property
therein described. Objection having
been made to the admission OF the mem
orandum while this paper remained at
tachod to it, 1.-The court excluded it until
the nsigned paper was detached, which
was finally done.
The memorandum, signed by Lane,
was then admitted without objection and
the appellant took exception to the ex-
clusiOn of the other paper. Held; that
the ruling was unquestionalby correct.
: Appeal dismissed. Exceptions over
ruled. Decree below affirmed with ad1i-
9 tional costs.