Doane v. Dunham

• Decision Date: 05 March 1902
• Docket Number: 11,273
• Citation: 89 N.W. 640,64 Neb. 135
• Parties: SAMUEL DOANE, APPELLANT, v. ELLEN DUNHAM ET AL. APPELLEES
• Court: Nebraska Supreme Court

89 N.W. 640

64 Neb. 135

SAMUEL DOANE, APPELLANT, v. ELLEN DUNHAM ET AL. APPELLEES

No. 11,273

Supreme Court of Nebraska

March 5, 1902

APPEAL from the district court for Nuckolls county. Heard below before HASTINGS, J. Affirmed.

AFFIRMED.

W. A Bergstresser, Jefferson H. Broady and Isham Reavis, for appellant.

S. W Christy and Cole & Brown, contra.

POUND C. BARNES and OLDHAM, CC. concur.

OPINION

POUND, C.

This action was brought to declare a resulting trust in certain lands alleged to have been purchased by appellant and conveyed by his direction to Sylvia A. Doane, his wife, now deceased, whose heirs at law are defendants and appellees. The district court found for the defendants as to the subject-matter of the present appeal, and decreed accordingly.

In our view, but one question is presented, namely, whether the decree is sustained by the evidence. Counsel have argued that the pleadings make a narrower issue than the existence or non-existence of a trust, and merely raise the question whether appellant or his wife paid the purchase money. But although the answer alleges that the wife furnished the funds, there is also a general denial, under which the court might properly find an absolute gift by the husband. It is undoubtedly true that proof of an issue by a preponderance of the evidence is all that is required of a plaintiff in any civil action. Stall v. Jones, 47 Neb. 706, 66 N.W 653; Wylie v. Charlton, 43 Neb. 840, 62 N.W. 220; Southard v. Curley, 134 N.Y. 148, 31 N.E. 330. But this is not a fixed or unvarying standard. What would be sufficient to constitute a preponderance of the evidence and to sustain a judgment in an ordinary case might not suffice in another, where, in addition to the burden resting upon the plaintiff in any case, particular presumptions are to be overcome. This is especially true where a plaintiff seeks by parol evidence to overcome the presumptions arising from the express terms of a conveyance, or from the relations of the parties concerned therein. It is obvious that what would ordinarily suffice may fall far short of the requisite quantum of proof in such a case, without in any degree infringing the general rule that only a preponderance of the evidence is demanded. In consequence, while we we may not admit the statements often to be seen in the books, that more than a preponderance of the evidence is required to establish a trust, contrary to the purport of a written instrument, by parol, and that the trust in such cases must be proved beyond doubt, there is no occasion to repudiate or to qualify what has become a commonplace of the books, that the proof in such cases must be clear, unequivocal and convincing. 2 Pomeroy, Equity Jurisprudence, sec. 1040; 1 Beach, Trusts, sec. 172; Schade v. Bessinger, 3 Neb. 140, 144; Deroin v. Jennings, 4 Neb. 97; Names v. Names, 48 Neb. 701, 67 N.W. 751; Klamp v. Klamp, 51 Neb. 17, 70 N.W. 525; Veeder v. McKinley-Lanning Loan & Trust Co. 61 Neb. 892, 86 N.W. 982. The very...