Rice v. Rigley

• Decision Date: 18 May 1900
• Citation: 7 Idaho 115,61 P. 290
• Court: Idaho Supreme Court
• Parties: RICE v. RIGLEY--MOORE & GLIDDEN, INTERVENERS

61 P. 290

7 Idaho 115

RICE v. RIGLEY--MOORE & GLIDDEN, INTERVENERS

Supreme Court of Idaho

May 18, 1900

MINING CLAIMS-GRUB STAKE CONTRACT-RESULTING TRUST.-To establish a resulting trust in land, the evidence must be so clear and certain as to leave no well-founded doubt upon the subject.

EVIDENCE-WEIGHT OF-SPECIFIC PERFORMANCE.-In an ordinary equity suit, the allegations of the complaint may be established by a preponderance of the evidence, but to establish a trust in land, and to obtain a decree for specific performance, the contract sought to be enforced must be fully and clearly proved. A mere preponderance of evidence is not sufficient.

COMPETENCY OF WITNESSES.-Under the provisions of subdivision 3, section 5957 of the Revised Statutes, in an action against an administrator to establish a resulting trust in land, the plaintiff in such action is disqualified from being a witness as to matters of fact occurring before the death of such deceased person. Nasholds v. McDonell, 6 Idaho 377, 55 P 894, overruled on that point.

SECTION 5957 OF THE REVISED STATUTES CONSTRUED.-The term "claim or demand," as used in said section 5957, embraces all rights of action for the establishment of a trust in land, as well as claims or demands for debts or damages against the estate of a deceased person.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellants.

James E. Babb and W. N. Scales, for Appellants.

This being an action to hold defendants as trustees of an undivided one-half of the property for plaintiffs, by the specific enforcement of the alleged prospector's agreement, plaintiffs cannot have a decree upon a bare preponderance of the evidence, nor unless plaintiff's case is clearly and satisfactorily proven and all doubts are cleared up. (Larkins v. Rhodes, 5 Port. (Ala.) 207; Lee v. Browder, 51 Ala. 289; Chambers v Richardson, 57 Ala. 87; Lehman v. Lewis, 62 Ala. 133; Mobile Life Ins. Co. v. Randall, 71 Ala 221; Bibb v. Hunter, 79 Ala. 358; Reynolds v. Caldwell, 80 Ala. 235; Crittenden v. Woodruff, 11 Ark. 89; Johnson v. Richardson, 44 Ark. 370; Crow v. Watkins, 48 Ark. 174, 2 S.W. 659; Millard v. Hathway, 27 Cal. 120; Woodside v. Hewel, 109 Cal. 481, 42 P. 152; Harvey v. Pennypacker, 4 Del. Ch. 460; Lofton v. Sterrett, 23 Fla. 574, 2 So. 837; Mahoney v. Mahoney, 65 Ill. 407; Heneke v. Floring, 114 Ill. 558, 2 N.E. 529; McGinnis v. Jacobs, 147 Ill. 31, 35 N.E. 214; Jenison v. Graves, 2 Blackf. (Ind.) 448; Parmlee v. Sloan, 37 Ind. 482; Olive v. Dougherty, 3 Iowa 372; McGregor v. Gardner, 14 Iowa 342; Parker v. Pierce, 16 Iowa 231; Sunderland v. Sunderland, 19 Iowa 329; Childs v. Griswold, 19 Iowa 363; Nelson v. Worrall, 20 Iowa 471; Maple v. Nelson, 31 Iowa 327; Shepard v. Pratt, 32 Iowa 298; Trout v. Trout, 44 Iowa 474.) One of the parties to the transaction being dead the proof should be clear, unequivecal and without doubt and uncertainty. (Snelling v. Utterback, 1 Bibb (Ky.) 610, 4 Am. Dec. 661; Hickey v. Young, 1 J. J. Marsh. (Ky.) 3; Carey v. Callan, 6 B. Mon. (Ky.) 45; Faringer v. Ramsay, 4 Md. Ch. 37.) The rule in this state, as elsewhere, in such cases, is well established. (Chambers v. Emery, 13 Utah 374, 45 P. 192.) Cases on specific performance: Huddleson v. Briscoe, 11 Ves. Jr. 591. The court is not to decree performance, unless it can collect upon a fair interpretation of the letters that they import a concluded agreement; that, if it rests reasonably doubtful, the court ought rather to leave the parties to law than specifically to perform what is doubtful as a contract. Quoted in Stratford v. Bosworth, 2 Ves. & B. 346; Flood v. Finlay, 2 Ball & B. 15; Hartnett v. Yielding, 2 Schoales & L. 554; O'Rourke v. Percival, 12 Rev. Rep. 71; Bruse v. Lindsay, 8 Vict. L. R. (Eq.) 235; Grant v. Brown, 13 Grant Ch. (Eq.) 257; Rawlings v. Hislop, 9 Vict. L. R. 27,) In an ordinary chancery case a complainant is required to establish the allegations of the bill by a preponderance of the evidence; but in a case of this character (specific performance), where the title of real estate is attempted to be taken from one and vested in another by a decree in a court of equity, something more than a bare preponderance of evidence should be required. (Sands v. Sands, 112 Ill. 232; Green v. Dietrich, 114 Ill. 644, 3 N.E. 800; Clark v. Clark, 122 Ill. 391, 13 N.E. 553; Shaw v. Schoonover, 130 Ill. 456, 22 N.E. 589; Gould v. Elgin City Banking Co., 136 Ill. 67, 26 N.E. 497; Koch v. National Union Bldg. Assn., 137 Ill. 499, 27 N.E. 530; Wolfe v. Bradberry, 140 Ill. 582, 30 N.E. 665; Rock Island etc. Ry. Co. v. Dimick, 144 Ill. 628, 32 N.E. 291.) While evidence of declarations of parties is admissible, it should always be cautiously received, even while they are living, and in respect to agreements not required to be in writing. It has less weight when the parties are dead, and can neither contradict nor explain them, and especially concerning a class of contracts that require unequivocal proof. (Missouri P. Ry. Co. v. McCarty. 97 Mo. 222, 11 S.W. 52; Poland v. O'Connor, 1 Neb. 53, 93 Am. Dec. 327; Lakerson v. Stillwell, 13 N. J. Eq. 359; Cooper v. Carlisle, 17 N. J. Eq. 530.) The parol agreement must be clearly proved to the satisfaction of the court. (Brown v. Brown, 33 N. J. Eq. 657; Coles v. Browne, 10 Paige (N. Y.), 526; Lobdell v. Lobdell, 36 N.Y. 330.)

V. Bierbower and Albert Allen, for Respondents, except Interveners.

This is a plain action for specific performance of an ordinary prospector's grubstake agreement, made in the mountains, and in the manner that such agreements are usually made, and without the formality of a written agreement. We insist that in an action to compel the specific performance of such an agreement no such rule as that contended for by appellants exists. We think the rule is correctly stated in Pomeroy on Specific Performance, sections 136, 137. Counsel for appellants, in their brief, commencing at page 101, contend that it was error to admit the testimony of Rice and Mallory as to conversation with Robbins prior to his death. They admit that the decision of this court in Nasholds v. McDonell, 6 Idaho 377, 55 P. 894, as well as the decision of the supreme court of California, in the case of Myers v. Reinstein, 67 Cal. 89, 7 P. 182, support the ruling of the court below in this case, but they say the supreme courts of California, Utah and the United States have held to the contrary before the decision of this court in the case of Nasholds v. McDonell. (Booth v. Pendola, 88 Cal. 36, 23 P. 200, 25 P. 1101; Poulson v. Stanley, 122 Cal. 655, 68 Am. St. Rep. 73, 55 P. 605.) Upon the question as to right to show all the circumstances surrounding Mallory and under which he made the affidavit, we cite the court to the following cases; People v. Wessel, 98 Cal. 352, 33 P. 216; Hawley v. Corey, 9 Utah 175, 33 P. 697; Douglas v. Douglas, 4 Idaho 293, 38 P. 934, 935; Kennelly v. Savage, 18 Mont. 119, 44 P. 400, 401.

Stoll & McDonald, for Interveners Glidden, file no brief.

Reid & Worth, for Intervener John C. Moore, file no brief.

SULLIVAN, J. Huston, C. J., concurs. Quarles, J., did not sit at the hearing of this case, and took no part in the decision.

OPINION

SULLIVAN, J.

This action was brought by the respondents Jacob N. Rice and Perry Mallory to enforce the specific performance of an alleged oral prospecting or grubstake contract, and to compel a conveyance to them of an undivided one-half interest in and to the Big Buffalo, Merrimac and Oro Fino mining claims, situated in Buffalo Hump or Robbins mining district, in Idaho county, which mining claims, it is alleged, were located by appellants and defendants B. R. Rigley and C. F. Robbins in pursuance of said alleged oral grubstake contract. After the commencement of the action, and before the trial, the defendant Robbins died, and one Dell Butterworth was appointed administrator of the estate of said deceased, and was substituted as a party defendant, and is an appellant here. The deceased, Robbins, during his lifetime, conveyed an interest in said mining claims to the defendant and appellant A. F. McKenna, and thereafter the defendants Dell Butterworth and Michael Green acquired an interest in said mining claims through said McKenna, and said defendants Butterworth and Mrs. Florence Young acquired interests to said mining claims through the defendant Rigley; and it is alleged that said interests so acquired by defendants Butterworth, McKenna, Green, and Young were acquired with full knowledge of the rights and claims of plaintiffs. The interveners (respondents) John C. Moore, Harry M. Glidden and Margaret P. Glidden claim an interest in said mining claims, the former through the plaintiff Mallory, and the Gliddens through the plaintiff Rice. The interveners are respondents on this appeal.

The allegations of the complaint, so far as material on this appeal, are: That the respondent Mallory had, before the location of said mining claims, acquired knowledge of the whereabouts of the ledges of quartz on which said claims were located, and that such knowledge was of great value to one seeking to locate mining claims. That on or about the thirtieth day of July, 1898, the respondent Mallory informed his co-respondent Rice and appellant Rigley and said Robbins, now deceased, of said quartz ledges, and advised them that it would be (liable to be) a good enterprise to go and locate the same. That thereupon, on said thirtieth day of July, the respondents Mallory and Rice and defendants Rigley and Robbins entered into an agreement of copartnership for the purpose of locating said ledges or veins. That by the terms of said agreement it was mutually agreed that...