| Ind. | Feb 1, 1853
This was a bill in chancery by Jacob S. Baker against the heirs of Jacob Leathers, deceased.
The bill and the several amendments state that Baker owned a tract of land in Kosciusko county, part of which he sold to Jacob Leathers, deceased, for 1,130 dollars, to be paid in cash, or secured by the promissory notes of Leathers so soon as the latter returned to his home in Ohio. At the time of the sale, Leathers was on a visit to the complainant, who was his son-in-law. After the return
Silas Leathers answers, substantially admitting the purchase, but alleging payment of the purchase-money before the execution of the deed. He denies that the deed was delivered as an escrow, but, on the contrary, insists that it was delivered to him for his father. He also denies that the deed was recorded contrary to the instructions or wishes of Baker.
Several of the other defendants file answers; but they put the defense on entirely different ground from that taken by Silas. The answer of John Leathers is to this effect. He assumes that in the original purchase of the land by complainant from Scoles, Baker was the mere agent of Jacob Leathers, senior; that Baker had fraudulently taken the deed in his own name; thus holding it in'
The answers of Mary Ann, Jacob, and William Leathers take the same position as that assumed in John's answer, and very nearly in the same words. Even Silas files a second answer, in which he follows John with remarkable precision. The circumstance, that all the answers are virtually copies of John's answers, that there is not merely a general resemblance, but a sameness even to the very paragraphs and phraseology, is a singular one. It is seldom .that different persons think the same thoughts, in the same order, and clothe them in the same language.
It is admitted by all the answers that Silas never delivered the deed to his father; though over two years intervened between the recording of the deed and his father’s death.
There was no demurrer to the bill or amendments; no exceptions to the answers; and in this Court no authorities have been cited by either party. On final hearing the Court dismissed the bill at complainant’s costs. Baker appeals.
The depositions are very voluminous. An abstract of them, brief and unsatisfactory as it must be, would answer no good purpose, and would swell the opinion far beyond the relative importance of the questions involved.
Had the test of demurrers and exceptions been applied to the pleadings in the Court below, it would have narrowed and pointed the issues, and greatly facilitated the labors of this Court. Without such tests, it is no easy matter to deduce from the bill, amendments, and answers the precise state of facts assumed and relied upon by the respective parties.
The purchase of the land by Baker from Scoles, and the deed for a part of this land by Baker to Leathers, senior, are not disputed. Baker alleges that the consideration of that deed was 1,130 dollars, and that Leathers has never paid it. The heirs answer he did pay it in this way— he advanced to Baker, as his (Leathers's) agent, the money to buy the land from Scoles — Baker fraudulently took the deed in his own name; and his deed of November 16,1840, to Leathers, senior, was made in consideration of the previous payment and to purge the previous fraud.
By the issue thus tendered the burden of proof devolved on the defendants. 6 Blackf. 542" court="Ind." date_filed="1843-11-15" href="https://app.midpage.ai/document/west-v-thornburgh-7030844?utm_source=webapp" opinion_id="7030844">6 Blackf. 542.—7 Blackf. 162" court="Ind." date_filed="1844-06-15" href="https://app.midpage.ai/document/pierce-v-gates-7030947?utm_source=webapp" opinion_id="7030947">7 Blackf. 162. If the depositions on the part of the defense sustain that issue, the Court below was correct in dismissing the bill.
As has been observed, the evidence on both sides takes a very wide range. We have examined and weighed it with great care. It is clearly proved that Leathers, senior, advanced money to Baker, but not for the purpose alleged in the answers. The evidence is, that in the year 1839, Baker bought a tract of land from Scoles for 1,400 dollars, paid 10 dollars, and entered into a sealed agreement specifying the terms of purchase; that, at the time, in the presence of Silas, one of the defendants, Baker, on inquiry made, told how he expected to pay for it, viz., by the proceeds of lands he had lately sold, and if he needed more he expected to get it from Leathers, senior, his father-in-law, as an advancement to his wife. Silas Leathers replied, his “father had promised to do so.” In May, 1840, Baker paid part of the money, gave his note for part, and Leathers, senior, paid the balance, distinctly putting it upon the ground of an advancement to Margaret Baker, wife of the complainant.
It will not be contended that money thus advanced, supported by the consideration of natural love and affection, can be resumed at pleasure, or recovered by the donor or his heirs either at law or in equity. Yet that is the claim
This view of the case is abundantly sustained by the depositions of Baker, senior, of George Scoles, and above all, of John Scoles, who sold the land to Baker. They were all present at the making of the contract between Scoles and Baker in 1839; and again at its consummation in May, 1840, when the money was paid and the deed delivered. They speak of the transaction as a whole. They speak of Baker’s expectation of aid from his father-in-law, openly expressed at the time of the purchase in 1839. On that occasion Silas, one of the defendants, at another time-John, also a defendant, announced that then-father intended to furnish such aid. The father himself frequently expressed his intention of doing something for Baker, making a “ gift or legacy” to his daughter, Mrs. Baker, &c. He made that “ gift” by paying part on Baker’s land, so designating the payment at the time, and accordingly by his acts directing the deed to be made to Baker. If he afterwards bought land from Baker, what reason is there why he or his heirs should not pay like any other purchaser? This view of"the case is entirely
It is readily admitted that a resulting trust may be established upon the parol declarations of the person in whose name the conveyance is taken;.but “such evidence is most unsatisfactory, on account of the facility with which it may be fabricated, the impossibility of contradiction, and the consequences which the slightest mistake or failure of memory may produce. Yet if plain, consistent, and, especially, if corroborated by circumstances, it is competent ground for a decree.” 2 J. C. R. 405. — 1 Wendell, 626. The evidence for the defendants does not bring them within this rule. It is not to be denied, however, that the testimony deduced from the two sets of depositions cannot be reconciled. In such cases it is our duty to weigh the evidence. We have done so. The result is that the preponderance is strongly in favor of the complainant. Against the array of facts disclosed in the depositions of Baker and G; and J. Scoles, fortified as they are by the depositions of other witnesses — facts, too, which explain in natural.and clear connection the whole history of the transaction in entire accordance with the face of the title papers — against such evidence the “ impressions” and “ understandings” of witnesses from loose conversations imperfectly understood as such things must be, and contradicting the face of contemporaneous title papers as these do, are not entitled to much weight. Indeed, we have not attached much importance to the numerous conversations, several years old, collected against each other by the respective parties. There is a clear, unvarying language in the facts w'hich careless admissions conveyed to us through the dull ear and imperfect memory of witnesses cannot bepermitted to control.
From a careful review of the whole case we think the Court erred in dismissing the bill. The decree should have been for the purchase-money with interest. The evidence show’s that the price agreed upon was 1,000 dol
The decree is reversed. Cause remanded, with instructions to the Circuit Court to enter a decree for the complainant as above indicated, declaring it a lien on the land described in the bill, giving the defendants thirty days to pay the amount of the decree, with costs, and in default thereof that execution issue to sell the land, &c.