Bernard v. Bougard , 1 Harr. Ch. 130 ( 1839 )

The Chancellor.

Every material allegation in the bill is fully and positively denied by the answer. The defendants, nine in number, say the complainant never either owned or occupied the said land, or any part or portion thereof; but the children and heirs, on the contrary, say, from their earliest recollection, their'father held the entire, exclusive and peaceable possession of the whole tract, as well the pretended eastern as the western portion; that the said Antoine did not, kmmediately before his death, or at any time, direct them to convey any portion of the tract to the complainant, or admit that he had any interest therein.

Indeed, it is hardly possible that an answer could be made more full and complete to all the material allegations in the bill. The defendants also set up and insist upon the statute of frauds.

Voluminous testimony has been taken on both sides.

The testimony has been carefully considered, and I cannot, from a review of it, come to the conclusion that the claim of the complainant can be sustained.

The complainant relies .for the establishment of his claim upon the testimony of Joseph Beauxhomme, Louis Bernard,

Louis Morminee, Joseph Drouillard and Louis Louigne.

The testimony of Beauxhomme is, as -to admissions made by Bougard, -and is inconsistent with itself. He makes Bougard -admit .that the complainant is entitled to one half, and says ■still that he said the two acres troubled him, &c.; and it is entirely at variance with the allegations of the bill, that the land was divided and complainant in the possession of the east half.

But little weight can be attached to the testimony of Louis Bernard. It is in proof that - he had previously alledged, that the present complainant had no interest in the land in question, but that it belonged to him. Louis Morminee testified before the board of land commissioners, that it belonged to Bougard. Drouillard testifies as to the original purchase from the Indians, and says it belonged to both complainant and Bougard. Louis Louigne substantially sustains the last witness, but is manifestly mistaken as to other statements which he makes, and so much so as at least to cast some doubt upon his testimony. There is such discrepancy and so much uncertainty in the showing in this case, that the testimony of the witnesses as to transactions of so ancient a date, should be received with caution.

The testimony of Margaret Rivor and Narcissa Delisle, who have resided near the land for a long time, strongly sustains the answers; they resided near the lands at a very early period, and never saw the complainant at work on the • land, or heard of his claim. Indeed the proof of any actual occupation by complainant, aside from the admission testified to bv Beaux homme, is very slight. When it is considered that the fact of a separate and distinct possession and occupation of the east half of the tract of land as alledged in the bill for so long a time, and up to a period so recent, must, if true, have been so notorious as to have been capable of clear and positive proof, coupled with the testimony as to the claim of Louis Bernard, that the land belonged to him; and also the testimony of Durocher, that so late as 1821, the complainant claimed the whole of the land, it is difficult to come to the conclusion, from any thing here presented, that the claimant ever had such a possession and occupation of any portion of this land, either joint or several, as would have entitled him to a confirmation by the commissioners, under the act of congress of May, 1820, continuing in force the previous act, of 1807. The claim of the complainant is probably founded on family residence; he was no doubt, occasionally there when a boy. It is true, there is great discrepancy in the testimony.,

But after a confirmation and patent, if it is competent at all to go behind it, it should only be done upon the clearest. and most irrefragable proof.

The point insisted upon in the argument, that the agreement, or pretended agreement, that both complainant and Bougard would concur in making proof before the commissioners of that which, according to the allegations in the bill, did hot exist, to wit: the sole occupation and improvement of this property by Bougard, so as to bring him within the requirements of the act of congress, is immoral, is entitled to weight. The commissioners had no authority to confirm to any except to those who proved themselves to come within the provisions of the act of congress. They have never acted upon any claim or right of this complainant.

If the allegations in the bill are true, the commissioners have been led by false lights, to do an act which they were not authorized to do. And if this conspiracy had not existed, it is possible such facts might have been elicited, as would have satisfied them that of right, it should have been confirmed to neither the one or the other.

The ground taken by the complainant, in order to avoid the statute of frauds, is, that this is a resulting trust; that the complainant, being actually entitled to the east half, and the title having been vested in Bougard, the complainant may compel the heirs to execute the trust.

From the premises it will be perceived, that, in the view of the Court, this position cannot be sustained.

First. It is not sustained by such clear and undoubted proof as should be required in a case like the present, that the complainant was ever entitled to a confirmation of any portion of this trust.

Indeed, from all the facts and circumstances developed in the case, I am inclined to think otherwise.

Second. If it were apparent that the complainant would have been entitled to a confirmation, it would still be questionable whether it would come within the rule of an implied or resulting trust.

A resulting trust only exists where the actual payment of the purchase money is clearly and distinctly proved. Payment of a part, or any thing less than the whole, will not raise a resulting trust. Steere vs. Steere, 5 Johns. Ch. R., 1; Boyd vs. McLean, 1 Johns. Ch. R., 582.

This was not a purchase. The occupants of these lands could not claim the grant of the government as a matter of strict legal right, although they may have had strong equitable claims. It was rather in the nature of a bounty or gift by the government.

If there was any trust, it was an express trust, and by parol, not evidenced, or pretended so to be, either-as to its existence or terms, by any written contract or memorandum whatever, and, to this, the plea of the statute of frauds, as has already been decided in this court, is a conclusive bar.

The existence of a trust may be shown by parol, but there must be some memorandum in writing showing its terms.

From the view I have taken of the case, all that portion of the proceedings and proofs which relate to the purchase by Clark and Disbrow, with notice, as is alleged, becomes immaterial. If they hacl notice of the claim of the complainant, it was a notice that he had no valid claim. The bill must be dismissed with costs.

Bill dismissed.