16 Utah 312 | Utah | 1898
(after stating the facts):
The question to be determined by this appeal is whether the deed to Mr. Keith was given and intended as security for the debt evidenced by the note, or as an absolute conveyance of the property in payment of the note. To establish the claim of the plaintiff, the appellant relies upon his own testimony as it stands in the record, supplemented by the somewhat negative testimony of Mrs. G-ray, which does not directly bear upon the agreement he relies upon. The entire burden was thrown upon the appellant to overcome, by clear, unequivocal, convincing-testimony, the strong presumption arising in favor of the terms of the written instrument; and we cannot say from such testimony alone that we are convinced beyond a reasonable controversy that he has established such claim, or that more proof should not be required to support his contention; and when we take into consideration the testimony of Mr. Keith, and that of the assignee, Mr. Cullins, we are irresistibly led to the conclusion that the evidence falls far short of establishing the satisfactory conviction that the deed was only intended as security for the debt ■evidenced by the note. The law never implies a trust, and the court never presumes a trust except in cases of necessity. Dalton v. Dalton, 14 Nev. 419. As a general rule, when it is proposed to set aside, annul, or correct a written instrument for fraud or mistake in its execution, the burden rests upon the moving party to overcome the strong presumption arising from the terms of the written instrument, by clear, unequivocal, convincing testimony; and if there is a failure to overcome this presumption by testimony clear, plain, and convincing, beyond any reasonable controversy, the written instrument will be held to express the intention of the parties.
The deed in question speaks as an absolute conveyance.
The plaintiffs at the trial offered to prove by Mr. Ewing that, after his conversation with Mr. Keith concerning the conveyance of the mine to him, witness went to his attorneys, Messrs. Brown & Henderson, for information as to how the legal title to the mining premises in controversy held by the assignee could be conveyed to Keith to secure his claim, and on this occasion said to his attorneys that, if he could succeed in making such arrangement, he thought it would enable him to pay all of his debts and release all of his property from the assignment; that the attorneys advised him that, in order to accomplish this, he must get the consent of his creditors, and have the assignee convey the claim to Keith, and that there should be a written agreement between him and Keith that the mine was to be held as security for such indebtedness; that, with this agreement, the desired end could be accomplished; and that Mr. Ewing replied that he had so much faith in Mr. Keith that he would take his word without a written agreement. The court, under objection, declined to receive in evidence the statements of Ewing to his attorneys, or their statements to him, in the absence of Mr. Keith, to all of which the plaintiff excepted, and alleges that the court erred in rejecting the offered
We may be pardoned for quoting an apt illustration from the brief of counsel for the respondents, which clearly.presents the failing that may attend the establishment of the rule contended for by the appellants: “Let us illustrate: Jones owns ten thousand shares of Ontario mining stock. Its present market value is $3 per share. Brown makes a verbal contract with Jones on the 1st day of January, 1897, for the purchase and sale of 100 shares to be paid for and delivered on the 1st day of June, 1897, and, to satisfy the statute of frauds, pays $5 of the agreed purchase price. Brown now reflects that possibly by the first of June, 1897, the stock may be very much more valuable. Straightway he goes to his clerk or his bookkeeper or banker, and says: ‘I have just made a contract with Jones for the purchase of his 10,000 shares of