Ratliff v. Ellis , 2 Iowa 59 ( 1855 )

Woodward, J.

⁽¹⁾ — This causéis presented to us in an over* whelming mass of papers, commendatory of the patience, industry, and faithfulness of the counsel, but of doubtful utility toward tbe result. If it were possible to make a resulting trust of tbe case, it would be easy of decision, for there is much testimony tending to support sucb a case, and to charge Ellis, were it not that Bailiff, by Ais ovm assignment and deed, conveyed this property to Bilis. Were it not for this, the payment of the purchase money by Batliff, with the testimony, would probably make out a trust, so far as the title derived from the county is concerned. But this whole mass of testimony, does not help us to dispose of the deed from Batliff. Here the statute of frauds, and the common law rule of evidence, in relation to changing or adding to written instruments by parol evidence, meets us. Parol evidence is not permitted to change an absolute deed into one of trust, unless there be fraud, accident, or mistake alleged, and to be proved. We may personally, be convinced by tbe testimony, tbat tbe grantee was to hold in trust, but tbe peremptory rule of tbe law, will not permit us to declare it so. Tbat law bas said, tbat such a trust can be created or declared by writing, only. And it is our dutjr to administer the law as it is, and not to indulge our feelings, nor follow our personal convictions alone.

The counsel very rightly disclaim the idea of a resulting trust, and explicitly rely upon an expess one. Where, then, is it expressed ? It is not in the deed from Batliff to Ellis. W e are referred to the inventory, and to the charge for paying taxing in the administration account. The first is no writing of Ellis. It has not even his signature. It amounts to no more than the parol evidence. And as to the other items, shall a court take property from one person and give it to another, upon the strength of that charge in the account ? 'How uncertain, how loose, how indefinite, is this evidence. It is not named in the papers on what property, even, the tax was levied. If it had been on these lots, the assessment roll would show it; and parties who have been so industrious in accumulating papers, would not have omitted this evidence. Many ways may be conceived, in which this tax may have been made up. It may have been levied'on the outstanding debts due the estate, an, amount of which is shown, which would have admitted this, and even more tax. But tax lists are not of so accurate a character, as to found a safe argument upon them. This item of evidence is too uncertain to act upon in a matter of importance, and requiring a fair degree of assurance. And this is the only item of evidence in writing, “ signed by the party,” which is contained in all the papers pertaining to this cause.

We cannot decree this property to be conveyed to the complainant, without overturning one of the great rules of the law, which constitutes the security of all property. If it operates unkindly in an occasional instance, we must remember that imprudence only will cause it so to work, and that the rule is a bulwark of safety to all. It is not uncommon for a court, to be compelled to act in accordance with this rule, against the fullest and clearest parol evidence. See the cases of Harkins v. Edwards & Turner, 1 Iowa, 426; Clark v. Russel, 1 Cond. Rep. 197; Faw v. Marsteller, Ib. 345, note; Stackpole v. Arnold, 11 Mass. 27; Mayhew v. Prince, 11 Ib. 54; Cook v. Eaton, 16 Barb. 439; Webb v. Rice, 6 Hill, 219; Arfridson v. Ladd, 12 Mass. 173, 177.

However reluctant we may be, therefore, the court is under the necessity of reversing the decree of the District.Court, and dismissing the complainant’s bill.

(1) Wright, C. X, haying been of counsel took no part in the consideration tif this cause.