Nasholds v. McDonell

• Decision Date: 31 December 1898
• Citation: 55 P. 894,6 Idaho 377
• Parties: NASHOLDS v. McDONELL
• Court: Idaho Supreme Court

55 P. 894

6 Idaho 377

NASHOLDS v. McDONELL

Supreme Court of Idaho

December 31, 1898

PERSONS WHO CANNOT TESTIFY.-Section 5957 of the Revised Statutes of Idaho, subdivision 3, does not apply to an action brought to establish a trust.

STATUTE OF LIMITATIONS AS TO CESTUI QUE TRUST.-The statute of limitations does not begin to run against a cestui que trust until a trust is denied, or some act is done by the trustee inconsistent with the trust. The record in this case examined and found to fully sustain the findings of the jury and judgment of the court.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Affirmed, with costs.

John A Bagley and King, Burton & King, for Appellant.

Where the title to real property passes by the agreement and consent of the parties, by deed absolute in form, expressing a valuable consideration, in the absence of fraud, mistake or a fiduciary relation, a trust cannot be grafted into the transaction or the terms of the deed overcome by parol testimony; the transaction comes within the statutes of fraud. (Perry on Trusts, par. 83; Flint v. Sheldon, 13 Mass. 443, 448, 7 Am. Dec. 162; Browne on Statute of Frauds, par. 106; 10 Am. & Eng. Ency. of Law, 59, and notes.) The cases all recognize that the party who undertakes to establish by parol evidence a trust in lands in opposition to the deed or other written evidence of the title has a task of great difficulty, and he must fail unless his evidence is such as to establish his case beyond all controversy. Public policy and the safety and security of titles require that this rule should be rigidly enforced. (Midmer v Midmer, 26 N. J. Eq. 304; Clement v. Clement, 1 Jones' Eq. 184; Kenedy v. Kenedy, 57 Mo. 73; Johnson v. Quarles, 46 Mo. 423; Hearne v. Insurance Co., 20 Wall. 488; Maxwell Land Grant Case, 121 U.S. 381, 7 S.Ct. 1015.) The testimony of respondent was incompetent and inadmissible. Respondent does not claim that Nasholds ever had the money, or took the title to the property in violation of any fiduciary or confidential relation, but that he, McDonell, paid one-half the money to Colvin, and directed him to give the deed to Nasholds. If a trust exists, it is an express trust, and cannot be proved by parol. (Perry on Trusts, sec. 79, and cases heretofore cited.) This suit is in the nature of a claim or demand against the estate of a deceased person, and respondent cannot be a witness as to any matter of fact occurring before the death of such deceased person. (Idaho Rev. Stats., sec. 5957, subd. 3.) Courts of equity often act upon their own inherent doctrine of discouraging for the peace of society antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights, and will not give relief against conscience or public convenience where a party has slept upon his rights. (Woods' Limitations of Actions, 435; 2 Story's Equity, par. 1520; Stearns v. Page, 7 How. 819; McGivney v. McGivney, 142 Mass. 156, 7 N.E. 721; Perry on Trusts, secs. 141, 869; 1 Pomeroy's Equity Jurisprudence, 419.) This action is barred by the statute of limitations of this state. Civil actions can only be commenced within the periods prescribed in this title, after the causeo of action shall have accrued. (Idaho Rev. Stats., secs. 4030, 4036; Lord v. Morris, 18 Ca. 482; White v. Sheldon, 4 Nev. 280, 288.)

Thomas F. Terrell and W. T. Reeves, for Respondent.

The question of the statute of fraud is a new one in this case. It was never mentioned or suggested at the trial. We deem it a sufficient answer to such a contention, even if their position were true, that defendant at no time during the trial, either by demurrer, answer, or objection to testimony, raised the question of the statute of fraud, and cannot now, on this appeal, for the first time, be heard to say the transaction is within the statute. When a contract within the statute of fraud is proved by parol evidence without objection or exception, the right to invoke the statute is waived, and it cannot afterward be insisted upon. (Kraft v. Greathouse, 1 Idaho 254, 259; Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498; Nunez v. Morgan, 77 Cal. 427, 19 P. 753; Broder v. Conklin, 77 Cal. 330, 19 P. 513; Sweetland v. Shattuck, 66 Cal. 31, 4 P. 885; Dorris v. Sullivan, 89 Cal. 62, 26 P. 621.) The objection to the evidence must be more than a general objection to competency; it must call the court's attention to the reason why it is incompetent; the objection must be that the contract is within the statute, and is not in writing. (Sweetland v. Shattuck, 66 Cal. 31, 4 P. 885; Eversdom v. Mahew, 85 Cal. 1, 21 P. 431-433, 24 P. 382; Keys v. Grannis, 3 Nev. 556; State v. Jones, 7 Nev. 415; Thompson v. Thornton, 50 Cal. 142; Wimans v. Hassey, 48 Cal. 634; Saterlee v. Bliss, 36 Cal. 489-507; Dreux v. Domic, 18 Cal. 83-89; Owen v. Frink, 24 Cal. 171-177.) If one party pays only a part of the consideration, the party taking the title to the whole land becomes a trustee for the other party pro tanto. (Case v. Codding, 38 Cal. 191; Hidden v. Jordon, 21 Cal. 92; Millard v. Hathway, 27 Cal. 119-139; Wasley v. Forman, 38 Cal. 90.) It is well settled that if a man pays a consideration and has a deed made to a stranger to his blood, a resulting trust at once arises in favor of the party who pays the purchase money. The law prima facie presumes a trust in favor of the person who has paid the purchase money. (1 Perry on Trusts, secs. 143-147; Cutler v. Tuttle, 19 N. J. Eq. 558; Davis v. Davis, 18 Colo. 66, 31 P. 499; Lakin v. Sierra Butte Min. Co., 25 F. 337.) Counsel for appellant discuss the question as to the competency of respondent to testify as a witness to the transactions with Egbert Nasholds, creating the trust claimed, the said Nasholds being dead at the time of trial. Appellant contends that to establish and enforce this trust is in the nature of a claim against the estate of Nasholds, deceased. Section 5957, subsection 3 of the Revised Statutes of Idaho is taken literally from section 1880, subsection 3, of the Code of Civil Procedure of California, and, of course, in adopting the statute of California, we adopted such construction as the courts of that state had placed upon it. Fortunately for respondent, this identical statute has been learnedly construed by a comparatively recent California case, in an action establishing and enforcing a resulting trust, to which we call the court's especial attention. (Meyers v. Reinstein, 67 Cal. 89, 7 P. 192.) The statute of limitation did not, therefore, begin to run until after the repudiation of trust in 1894. The repudiation of the trust was a fraud upon the respondent, which he did not, and could not, discover until such repudiation occurred. (White v. Sheldon, 4 Nev. 280; McClure v. Colyear, 80 Cal. 378, 22 P. 175; Barroilhet v. Anspacher, 68 Cal. 116, 8 P. 804; Love v. Watkins, 40 Cal. 548-570, 6 Am. Rep. 624; Jones v. Throckmorton, 57 Cal. 368.) The statute will not begin to run against the cestui que trust or joint tenant while the latter is in possession of the trust estate. (Gilbert v. Sleeper, 71 Cal. 290, 12 P. 172; McCauley v. Harvey, 49 Cal. 497.) The statute of limitations does not begin to run against a cestui que trust in possession until ouster, whether the trust be an express or an implied trust. (Henderson v. Hines (Pa.), 6 A. 52; Lakin v. Sierra Butte G. M. Co., 25 F. 337; Taylor v. Holmes, 14 F. 498; Luco v. De Toro, 91 Cal. 405, 27 P. 1082-1084.)

HUSTON, J. SULLIVAN, J. Sullivan, C. J., Huston, C. J., concurring. Quarles, J., took no part in the hearing or decision of this case.

OPINION

HUSTON, J.

Plaintiff brings this action to establish a trust in his behalf in certain real estate situated in Salmon City, Lemhi county Idaho and to compel defendant to convey to him a one-half interest in said property. The case was tried by the court with a jury. The facts, as shown by the record and found by the jury, are substantially as follows: in the year 1882 plaintiff and Egbert Nasholds, the husband of appellant, were partners engaged in the business of running a stage line in Lemhi county, Idaho. In September of that year, plaintiff and said Nasholds purchased of one Calvin the real estate in question, being certain lots in the town of Salmon City, Lemhi county, giving in payment therefor their two joint and several notes for the sum of $ 500 each, due in twelve and eighteen months, respectively, with interest at the rate of twelve per cent per annum. Immediately after the purchase of said property, plaintiff and said Nasholds (the latter being a married man, and the plaintiff a single man), went into possession of said property, and continued so in possession until the death of said Nasholds, which occurred in March, 1892, since which time plaintiff and defendant have occupied said premises up to the time of the commencement of this suit. At the time of the purchase of said property, the same was public land of the United States, but was subsequently patented under the townsite laws of the United States; and thereafter, in 1883, the same was deeded...