Hudkins v. Crim

• Decision Date: 31 March 1908
• Citation: 61 S.E. 166,64 W.Va. 225
• Parties: HUDKINS v. CRIM et al.
• Court: West Virginia Supreme Court

61 S.E. 166

64 W.Va. 225

HUDKINS v. CRIM et al.

Supreme Court of Appeals of West Virginia.

March 31, 1908

Syllabus by the Court.

Oral evidence to establish a trust as to land by oral agreement must be clear, strong, and unquestionable. This superior measure of proof is especially required to set up by oral evidence a trust as to land by verbal admission of one since deceased.

[Ed Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 66-68.]

Evidence of admissions or declarations by a person to establish against him an express trust for land in favor of another against his legal title is unreliable and weak, and should be received with great caution, unless corroborated by the circumstances.

[Ed Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 66-68.]

In the separate estate of a wife the husband has no estate during coverture, as at common law, nor any curtesy initiate. His curtesy rests only upon the wife's death. Therefore he is a competent witness, though his evidence may go to establish his wife's title.

[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses §§ 644-649.]

The interest in the result of a suit which will exclude a witness under section 23, c. 130, Code 1899 (Code 1906, § 3945), must be a present, certain, vested interest, not uncertain, remote, or contingent, though, if such, it matters not how small the interest.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 598-618.]

A variant statement made by one in an answer in a former suit, though not between the same parties as in the present suit, may be used to impeach him as a witness.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1209.]

An answer by one defendant in a chancery suit cannot bind, or be used against, a codefendant, either in a former or the present suit, unless the interest of the two parties be joint.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 715.]

Appeal from Circuit Court, Barbour County.

Action by Abram A. Hudkins against E. H. Crim and others. Decree for plaintiff, and defendants appeal. Reversed.

W. B. Kittle and Melville Peck, for appellants.

Samuel V. Woods, for appellee.

BRANNON J.

Abram A. Hudkins gave two deeds of trust on a tract of 192 acres of land in Barbour county to secure two debts to J. N. B. Crim. Hudkins was under judgments to other creditors, and Crim brought a creditors' chancery suit against that land to sell the land for the payment of his own and other debts. The land was sold under decree in that case to Crim for $5,285, and the sale was confirmed, and the land was conveyed under decree in the case to Crim. The sale was on the 22d day of October, 1886. Crim died 11th January, 1905. In January, 1906, Abram A. Hudkins brought the chancery suit now in our hands for decision against the executors and devisees of Crim, stating that, before the land was sold to Crim under the decree, Hudkins and Crim made an agreement by which Crim was to buy the land in in his name for the benefit of Hudkins, who was to repay Crim the purchase money with interest, and pay taxes, and that it was under such agreement that Crim did buy in the land. The bill of Hudkins thus charged that such agreement created an express trust making Crim but a trustee holding title for Hudkins, and the bill alleging that Hudkins had fully repaid Crim his outlay in the purchase of the land, and asked that such trust be executed by a decree requiring the devisees of Crim to convey to Hudkins the said land. The case resulted in a decree in favor of Hudkins. Crim's devisees and executors appeal the case.

This is a case of an oral trust. Not a scratch of a pen appears to show the creation of a trust or to manifest its existence. Under an English statute of frauds known as "Section 7 of the Statute of Elizabeth," adopted in many of our states, this case could not get into court; but that feature of the statute of frauds has not been enacted in West Virginia, and so oral trust, though not created or manifested in writing, are enforced in equity in West Virginia. The plaintiff's case rests only on oral evidence. Whilst no writing is required to create or attest such trusts, yet that very fact makes our courts more cautious-more rigid-in enforcing oral trusts based on nothing but oral evidence. The plaintiff's case rests alone on oral evidence of admissions by Crim. No witness states a definite, fixed agreement giving its terms and provisions. The evidence shows only admissions or declarations of Crim, and he in his grave-his lips voiceless to defend the rights of his children. I have long remembered the statement in Starkie's great work on Evidence, which I have not been able to find, that of all evidence within the field of evidence such evidence is the weakest and most unreliable. In this case I borrow the language of the eminent and lamented Judge Snyder, on page 11 of 22 W. Va., in Vangilder v Hoffman: "The whole claim of the plaintiff rests upon the mere verbal statement of the appellant gathered by witnesses from casual conversations. Evidence consisting of the mere repetition of oral statements-and especially when made to and proved by persons having no interest in the subject of the conversation-is of the weakest and most unreliable character, and should be received with the greatest caution. And unless corroborated by other proof, or aided by surrounding circumstances, it must be held insufficient to establish any material fact. Horner v. Speed, 2 Pat. & H. (Va.) 616." "Evidence as to confessions of parties is to be received with great caution, no matter how pure the source from which it is derived, because of the liability of a witness to mistake or misunderstand the admission when made, and to remember inaccurately or misrepresent it afterwards. Such evidence is intrinsically weak, and is inconclusive to establish a fact without the aid of other testimony." Horner v. Speed, 2 Pat. & H. (Va.) 616 (Syl., point 4). "Admissions made by a person since deceased, and proved by witnesses who cannot be contradicted, are said to be the weakest kind of evidence." 1 Am. & Eng. Ency. L. (2d Ed.) 723. "There have been but few judges or elementary writers who have not had occasion to speak of the character of this kind of evidence; such is the facility with which it may be fabricated, and such the difficulty of disproving it, if false. It is so easy, too, by the slightest mistake or failure of recollection, totally to pervert the meaning of the party, and change the effect of his declarations, that all experience in the administration of justice has proved it to be most dangerous kind of evidence." 1 Ency. Ev. 611, note. This is just the kind of evidence on which the plaintiff in this case asks a decree to take away from a dead man's children a valuable tract of land for which their father paid thousands of dollars. This is just the kind of evidence by which a title to land attested by judicial record is to be taken away. The highest evidence of written title, one by judicial record, is to be torn into tatters to make good an oral title resting on uncertain word of mouth. The number of such suits is legion. Speaking for myself I would advise the Legislature to enact the section of the statute of Elizabeth requiring a trust to be either created or manifested in writing in order to protect written titles and prevent fraud and perjury. In the present case the man against whose children this trust is alleged is dead, making the demand for clear proof stronger than if against a living man; but, if Crim were still living, our cases and those everywhere demand that the case be sustained by indubitable evidence. "Parol evidence to establish a trust must be clear and unquestionable to produce such result." Armstrong v. Bailey, 43 W.Va. 778, 28 S.E. 766 (Syl., point 2). The same we find in Hatfield v. Allison, 57 W.Va. 379, 50 S.E. 729. "The superior measure of proof hereinbefore mentioned is requisite in order to establish by parol evidence a trust in real estate, especially by a verbal admission of a decedent." 17 Cyc. 774-775, C. It is useless to detail the evidence of the witnesses as to declarations made by Crim. Taken at best they are uncertain. And from some of it we cannot tell whether it relates to an agreement before sale or to some agreement of purchase after sale. One of the witnesses only guesses at the land to which Crim referred. But, were it clearer and stronger than it is, it must fall before documentary evidence introduced to repel any such trust whatever. After the sale Abram A. Hudkins remained on the land. Before the sale, but after the deeds of trust to Crim, Abram A. Hudkins sold 40 acres of the land to M. J. Hudkins, wife of E. B. Hudkins, and E. B. Hudkins was in possession of the tract along with Abram A. Hudkins for years. Under date of April 15, 1890, Crim delivered to E. B. Hudkins and A. A. Hudkins a memorandum, making a claim upon them in the words and figures following: "Rent of farm from October 22, 1886, for five years to October 22, 1891, and all outside of land purchased, $3,048.55. April 15, 1890." Thus Crim claimed that the Hudkinses were not owners but renters of this land in the plainest manner. It has nothing to do with the land purchase. It denies any claim by Hudkins. One of the Hudkinses took this memorandum himself to an attorney, a son-in-law of Crim, and had him to draw a promissory note for the very amount claimed by Crim in his memorandum: "$3,048.55. Philippi, W. Va., April 8, 1890. One day after date we promise to pay to the order of Joseph N. B. Crim three thousand and forty-eight dollars and 55-100 dollars at the Tygarts Valley Bank, Philippi, W.Va. Value received. Int. from April 15, 1890. E. B....