The White Pine news. [volume] (Treasure City, Nev.) 1868-1906, 1903-11-05
Am. & Eng Enc. Law dst ed vol


And "A court of equity in "A proper case,
where the essential facts from which the
trust Is implied are clearly established
lby the evidence and no other equitable
principle operates as "A bar will always
enforce such a trust and compel a con-
veyance to the beneficiary where such re
lief IS needful.
There Is no doubt but that a result
ing or constructive trust is not within
the statute of frauds and can be proven
by parol. Plaintiffs counsel argues that
a mere preponderance of the evidence Is
all that IS required to entitle her To the
relief sought, While the general rule in
civil eases is that the party i'm whose
favor preponderance of the evidence
exists. is entitled to recover. | do not
think that such is the rule in cases like
the one at bar. Where, as here, an at
tempt is made To disregard the written
record the legal title, and TO establish an
implied trust by oral testimony, equity
demands a much higher degree of proof
than a mere nreponderance of the evil
dence. The rule Is the same whether
the implied trust sought 10 be estab-
lished be a resulting trust or con
structive trust
The burden of proof is on the party
seeking to establish the trust. And the
evidence in order to establish such a
trust, must be clear. full and satisfac-
tory
Am. x Eng. Ency Law list ed. vol.
10. p. 20. and eases cited in note =.
Constructive trusts may be proved by
parol evidence. But II must be very
strong and clear"
Am. Il Eng. Ency. Law dst ed. vol
10. p. 81.
since these resulting trusts are not
embraced within the statute Of frauds.
their existence need not be evidenced by
any writing, and may. therefore. be estab-
lished by parol. IL is settled by
complete unanimity of decision that
such evidence must be clear. strong I'M
equivocal unmistakable. and must estab-
fish the fact from which the trust win
be implied) beyond a doubt"
| > Pomeroy Eq. Jur. Sec. 1910.
The existence of a constructive trust,
as of a resulting one. must be proved by
clear unequivocal evidence
Pomeroy Ed. Jur, Sec. 105S.
The case of Rice VS.. Rigby. 81 Pac.
290. decided by the Supreme Court of
Idaho in 1900 Is in many respects like
the case at bar. II was an action to en-
force the specific performance Of an al
legged grub-stake contract and to compel
the conveyance to plaintiffs of an UNI
divided half interest in certain mining
claims The evidence was exceedingly
conflicting. The trial court found the
issues for the plaintiffs. i'm whose favor
judgment and decree was entered. Mr..
Justice Sullivan, speaking for the Idaho
Supreme Court, after reviewing the evil
denee, SAYS las to the law of the case
counsel for appellants fdefendants) con-
tend that as respondents (plaintimsl are
seeking to hold the appellants as trustees
of an undivided one-half of said mining
! claims. and to enforce the specific per
Torrance of an alleged prospectors or
grub-stake contract, respondents cannot
have a decree on bare preponderance Of
the evidence and that they are not en-
titled TO decree unless their case has
been clearly and satisfactorily proven
and all doubts cleared up; while counsel
for respondents contend that in this class
OF cases the rule Is well established that
a mere preponderance of the evidence
Is all that is required. The trial court
held that predonderance Of the evidence
was all that was necessary to establish
plaintiffs case After discussing the
authorities. showing that they support
the appellants (defendants) contention,
the learned judge proceeds; THE APP
pellants title rests on discovery and
proper location, filing for record a proper
notice of location. and complying with the
law therein. The title results from
compliance with the law. The title is in
appellants. Respondents seek TO engraft
thereon a resulting trust, whereby they
undivided half interest Of in and to
said three mining claims and pray a
specific performance Of an alleged grub
stake and Information contract Z.
The evidence must be satisfactory clear
and convincing. II must be so clear and
certain as TO leave no well-founded doubt
/ in the mind of the court. The evidence
of the respondents, when tested by that
rule, will not entitle them to decree"
And the judgment of the trial court was
reversed
Making an application of these we'll
settled rules of evidence which are con-
/ trolling in cases Of this character TO
the evidence in the case at bar can we
/ say that the evidence is sufficient to
establish the existence of the alleged
'grub-stake' agreement or that the
Joanna was located during its existence
and by means of the grub stake furnished
4 in pursuance thereof? The evidence is
certainly conflicting and contradictory.
/ While ! was favorably impressed with the
testimony of Mrs. Bonner and her
4 daughter, and while there was some evil
dence corroborating theirs still some of
/ the circumstances shown and the actions
4 of Mrs. Bonner subsequent TO the loca-
4 ton of the Joanna" are not consistent
with her claim. | can readily imagine
4 that after some lapse of time when the
claims on which her money had been ex-
pended had not proven Of much value
and Mrs. Watson's claim located at the
same time had turned out to be paying
valuable property, the plaintiff espec-
ally when melted by the suggestion of
Jealous friends, may have became con-
i fused in her own mind as TO the time
and terms, and meaning OF the agreement
she actually entered into. Plaintiffs
counsel argues that the making of the
alleged grub-stake agreement Is proven
4 nv the taefipnOnU of I.r
son and daughter. That IL Is denied only
by Watson and Baker, the latter OF whom
counsel claims is wholly unworthy of be-
/ lief. He says Mrs. Watson could not
testify as to what happened at Cherry
Creek early In April while she was at
Ely. Conceding all this, 1t Is neverthe-
/ less true. that II the circumstances as
to the location of the Doubtful" Cold
1 Hill and Joanna" were as sworn to by
Mrs. Watson the alleged agreement of
the fore part Of April could not have been
made or must have lapsed by limitation
/ or consent of the parties to II. So that
Mrs. Watson's evidence reinforces the
denials of William Watson and Baker.
The purchase OF the goods at Cannon's
and McAulays stores Is as consistent
with the testimony OF defendants wit
nesses of the plaintiffs. The ac-
quiesence of the plaintiff during the
summer of 1899 In Mrs. Watsons owner
ship of the Joanna" Is evidence tending
to disprove plaintiffs version of the
contract between the parties. To some
extent 1t was an admission that she
had no claim to the Joanna" There is
no evidence that Mrs. Bonner ever as
serted claim to the Joanna" prior TO
November. 1899. the evidence leaves
in the mind Of the court a very strong
doubt as to the existence of such a state
of facts as would entitle the plaintiff to