Noel v. Noel , 1 Iowa 423 ( 1855 )

Wright, C. J.

We do not think this decree can be sustained upon this testimony. • The legal title is concededly in the defendant. To divest it, upon the ground that he holds it, or any part of it, as trustee for the complainant, the testimony should be clear and satisfactory. It is a rule; too well understood to need repetition, that parol testimony to establish such trust should be received with great caution, and should be clear, and such as goes distinctly to prove the facts necessary to create such resulting interest. The testimony must not be loose and equivocal. It is contrary to every correct principle, that the legal title should be divested upon parol testimony, which is not clear, satisfactory, and distinct. Hill on Trustees, 94 et seq.; Oliver v. Doherty, June term, 1854.

In this casé, there is, to our minds, an entire want of this clear and satisfactory proof. One witness states, that he understood the parties were to be joint owners of the property, and that, “ because complainant was to furnish part of the purchase money.” As to this, it is sufficient to say, that the understanding of the witness is entirely immaterial, and is something upon which a court should never act in such cases. The witness is to state the facts or circumstances, and the court is to judge of their effect. And therefore, in this case, if the facts proved do not show clearly a resulting trust, none will be allowed, whatever might be the understanding of the witness. Then this witness simply shows that complainant was to furnish a portion of the purchase money, and lie and his wife were to occupy the property with the defendant, as a home. In addition to this, the witness Boats states, that defendant told him, “ that when they got the house all straight and paid for, the old man was to have a share of the house.” What share, is not shown. And whether he spoke with reference to a'portion of the house in which to reside, or the title, is left entirely indefinite. Upon tbis kind of testimony, there could properly be no decree divesting tbe title, because of its indefinite character as to the amount of the interest, even if it had reference to the title. Sayre v. Townsend, 15 Wend. 647; Baker v. Vining, 30 Maine, 121. How could any court say, what share was meant by this expression ?

Joseph Noel is the only other witness who speaks of this matter, and he knows nothing except what he learned from his parents' — -knows nothing from anything defendant said, or from hearing any contract; nor is there any pretence that defendant was present at the time of such conversations. It is unnecessary to say more, than that such testimony amounts to nothing, and can be of no weight against defendant.

We think it as fairly inferable, from the whole testimony, that the claim which the defendant sets up, as to the contract under which he received the property, is correct, as that alleged by the complainant. The burden of proof, in such cases, is peculiarly upon the party claiming to establish the trust; and in this case, he has certainly not complied with the rule. If the son has violated his agreement, in failing to furnish complainant and his mother a house, they have their remedy; but under the proof here made, it cannot be given by decreeing them a portion of the lot. There may be bad faith on the part of the son, but it is not shown, so as to satisfy us that we would be j ustified in giving the relief here asked.

Decree reversed.