Carter v. Carter
| Decision Date | 26 January 1905 |
| Citation | 103 N.W. 425,14 N.D. 66 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland county; Fisk, J., presiding by request.
Action by E. H. Carter against Albert J. Carter. Judgment for defendant and plaintiff appeals.
Affirmed.
C. E Wolfe and McCumber, Forbes & Jones, for appellant.
Purcell Bradley & Divet, for respondent.
This is a suit in equity to establish title to a tract of real property by virtue of a resulting trust. The trial court found the facts against the plaintiff, and ordered judgment dismissing the action. The plaintiff appeals from the judgment under section 5630, Rev. Codes 1899, and demands a review of the whole case.
The plaintiff asserts that the land in question was bought and paid for by him, but was conveyed to the defendant pursuant to a verbal agreement between them to the effect that the defendant should hold the title in trust for the plaintiff. If any trust was created, it was an implied trust, resulting from the payment of the purchase price by plaintiff. "When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made." Rev. Codes 1899, section 3386; Smith v. Security Loan & Trust Co., 8 N.D. 451, 79 N.W. 981. An express trust in relation to real property cannot be created by oral agreement. Rev. Codes 1899, section 3385. The evidence as to the alleged oral agreement therefore was admissible only so far as it tended to throw light on the pivotal question as to whether the purchase price was paid by or for the plaintiff. On this crucial question the evidence is in irreconcilable conflict. It would serve no useful purpose to state it in detail. Suffice it to say that the plaintiff positively asserted that he furnished the money to buy the land, and that the defendant agreed to take the conveyance to himself in trust for plaintiff. The defendant just as positively denies any such arrangement, and claims that the plaintiff temporarily advanced to defendant the amount required to buy the land, and that such advancement was repaid to plaintiff from the proceeds of a loan secured by mortgage of the land given by defendant and negotiated by plaintiff. Each party introduced testimony as to alleged admissions of the other, and circumstances which tended to corroborate his own testimony and discredit that of the other. These admissions were merely casual remarks claimed to have been made to or in the hearing of witnesses, and these remarks, as well as the circumstances, even if they were undisputed, are not of such a character as to necessarily discredit the party against whom they were proven. In order to overthrow the presumption in favor of defendant's title in a case such as this, the plaintiff must have more than a preponderance of evidence. The proof must be "clear, specific, satisfactory, and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt." Jasper v. Hazen, 4 N.D. 1, 58 N.W. 454, 23 L. R. A. 58; Riley v. Riley, 9 N.D. 580, 84 N.W. 347; McGuin v. Lee, 10 N.D. 160, 86 N.W. 714; Sargent v. Cooley, 12 N.D. 1, 94 N.W. 576. This case is one which depends wholly on the credibility of witnesses. The trial judge saw and heard all the witnesses except one testify. Under such circumstances the findings of the trial court are entitled to some weight. Nichols v. Stangler, 7 N.D. 102, 108, 109, 72 N.W. 1089; State v. McKnight, 7 N.D. 444, 75 N.W. 790. In view of his opinion as to the relative credibility of the witnesses before him, the record does not convey to us proof of such a clear and convincing character as to enable us to say without hesitation or doubt that the allegations of the complaint are established.
Appellant contends,...
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