Logan v. Johnson , 72 Miss. 185 ( 1894 )

Cooper, C. J.,

delivered the opinion of the court.

The decree of the chancellor must be affirmed. It is evident that the complainant and the defendant, Delaware Johnson, have made common cause against the defendant, Amelia Johnson, in whom the title of the land, as. to which a resulting trust is sought to be established for the complainant, is now vested. The facts from which the trust is supposed to result are testified to by the complainant and by Delaware Johnson, and there is a radical variance in their statements. The complainant testified that she owned a horse which her father traded for a bale of cotton, which cotton he sold, and with its proceeds, under her direction, bought the land for her and as hers, taking title in himself to protect the complainant from her improvident and intemperate husband. Delaware Johnson testifies that the horse was the property of complainant’s husband, James Logan, and that he, the witness, exchanged the horse for a bale of cotton, from the proceeds of which he bought the land, and says: “The reason I did not haye the deed made in Logan’s name was because he was a drinking man. ’ ’

If it were made certain by the testimony that the money derived from the sale of the cotton was the identical fund used in the purohase of the land, it would yet remain uncertain whether the trust, if any existed, was in favor of James Logan or of complainant. The evidence going to show that the money for which 'the cotton was sold was the money invested in the land is not satisfactory. Delaware Johnson states positively that it was, but he admits that some six or seven years elapsed after the cotton was sold before the land was bought, during all which time he states that the money was in his trunk. But he also says that he had, as he expresses it, “a right smart’’ of his own money, and he does not explain how it was that the money derived from the cotton was so long kept intact. It is not pretended that it-was for the purpose of investing it in a home for complainant, or that any purpose to that effect was formed until about the time the land was bought.

Where it is necessary to prove by parol the existence of a trust, “the evidence must be clear, strong, unequivocal, unmistakable, and must establish the fact of the payment by the beneficiary beyond a reasonable doubt.” 2 Pom. Eq., § 1040.

Decree affirmed.