John v. Butler , 78 Me. 520 ( 1886 )

IIasicell, J.

The orator seeks a decree, that the respondent shall convey certain real estate to him, upon two grounds.

T. That he may secure the benefit of a resulting trust that arose in his favor in the hands of his wife in her life-time, and at her death descended to the respondent.

II. That he may have specific performance of the respondent’s agreement with him to make the conveyance.

The respondent by answer denies both the trust and the agreement, thereby casting the burden upon the orator to prove both.

Without the testimony of the orator, the evidence does not sustain the averment of the bill that the estate was held in trust; and to prove that issue the orator is not a competent witness. The respondent is summoned to answer the charge, that as heir of her mother the estate cast upon her is a trust estate, that was acquired and held by the mother in trust for the orator’s use. She is thus " made a party as heir of a deceased party.” R. S., c. 82, § 98; Simmons v. Moulton, 27 Maine, 496; Burleigh v. White, 64 Maine, 23; Wentworth v. Wentworth, 71 Maine, 72.

To prove the alleged agreement of the respondent to convey, the orator is a competent witness; because, touching that agreement the respondent is summoned to answer in her own right, and on her own account. It seems that the bill must be multifarious, as two distinct causes for relief are set out, but as no objection is urged on that account the court is constrained to decide the latter issue.

The property said to have been conveyed to the mother, and inherited by the respondent, and by her agreed to be conveyed to the orator, is valued by some witnesses at twelve hundred dollars. The consideration, that is said to have been paid by the orator for the respondent’s agreement to convey, was the delivery of a horse valued by some witnesses at one hundred dollars. Whatever agreement the respondent made, was doubtless under the impression, that she could not hold the land, but had only a claim against it for money, that she had expended in the support of her father’s family, amounting to a considerable sum.

The evidence touching the agreement is so conflicting and unsatisfactory, and the agreement, standing by itself, as it must stand in this cause, is so unreasonable, that the court hesitates relief, and refers the parties to a court of law, where such damages may be recovered as the law may give. Woodbury v. Gardiner, 77 Maine, 71.

Bill dismissed.

Peters, C. J., WaltoN, Daneortii, Emery and Foster, JJ., concurred.