| Ark. | Jun 25, 1906
(after stating the facts.) 1. If we should concede that the complaint stated a cause of action, still the proof in our opinion was not sufficient to establish a resulting, trust. To establish a resulting trust by parol, the proof must be “full, clear and convincing.” Camden v. Bennett, 64 Ark. 156; Crow v. Watkins, 48 Ark. 169" date_filed="1886-11-15" court="Ark." case_name="Crow v. Watkins">48 Ark. 169; Johnson v. Richardson, 44 Ark. 365" date_filed="1884-11-15" court="Ark." case_name="Johnson v. Richardson">44 Ark. 365; Crittenden v. Woodruff, 11 Ark. 82. To sustain appellee’s contention, we must set aside solemn instruments of writing purporting to convey title absolute-which were entered upon record. To sustain his contention, we also, in legal effect, must set aside the solemn judgment' of a court of record that was sustained against J. H. Beidler as the apparent owner, and operated upon his property because it appeared to be in his name, and because he, by various conveyances and visible acts of occupation and control, had held out to the world that he was the absolute owner of the property. A judgment is demanded of a court of equity that will have this effect partly upon the testimony of the very man whose conduct in dealing with the property appellee himself denounces as “basely fraudulent.” Appellee must not expect a court of chancery to give credit to the testimony of a witness (not against his interest) who he himself says, perpetrated “grievous frauds upon him.” No-weight should be attached to the testimony of J. H. Beidlér in favor of appellee in establishing any independent fact necessary for recovery. For the facts show that, if he was a trustee, he robbed his dead brother’s estate and perpetrated “gross frauds” upon- his own nephew, while he was yet a boy of tender years. The testimony of this witness is utterly unworthy of belief, His conduct through all those years under his deeds are of infinitely more force than his words at the trial. “Tell me what a man has done under an instrument, and I will tell you what it means.” Then the only other proof is a statement by appellee himself that “he had heard from his father, when a small boy, that his uncle had no interest in the property, and heard his father say to his uncle, 'Now, brother, if anything happens to me, you will of course deed all of the property to the boy; and his uncle’s reply, “Why, certainly, brother; there can be no doubt about that.” The deeds which purport upon their face to convey the property in fee for a valuable consideration should not be canceled upon this proof. It does not come up to the standard. Goerke v. Rodgers, 75 Ark. 72" date_filed="1905-04-15" court="Ark." case_name="Goerke v. Rodgers">75 Ark. 72; McGuigan v. Gaines, 71 Ark. 614" date_filed="1903-11-14" court="Ark." case_name="McGuigan v. Gaines">71 Ark. 614. The testimony that “he had heard from his father when a small boy that his uncle had no interest in the property,” as it appears in this record, was not competent to establish the fact that his uncle had. no interest in the property. The declaration of the grantor in a deed which purports upon its face to be for a valuable consideration, and to convey the absolute title, can not be used to impair or impeach the title of the grantee in the deed, or those claiming through or under him. It is not shown that this statement was made in the presence of the grantee, under circumstances which required of him to affirm or deny the statement.
The testimony of appellee that he heard his father say to his uncle in Michigan: “Now, brother, if anything happens to me, you will, of course, deed all the property to the boy,” conceding it to be true, is too indefinite to establish a resulting trust for the property in controversy. Moreover, this alleged conversation between father and uncle is said to have occurred when appellee was only about twelve years of age. After more than a dozen years had passed he testified to his recollection of the conversation. But he gives no minutiae, he details no circumstances showing why a conversation between two grown people about a grave business matter should have found a lodgment in his memory to abide for all those years. Such recollections are not impossible, but, without any accompanying circumstances calculated to impress -such conversation upon the child’s mind, it seems improbable, if not unnatural, that he should have remembered it. It is not “the way of a child.” Such testimony is inherently weak, and not entitled to the probative force necessary to overcome written instruments, and to destroy titles acquired through reliance thereon.
2. Appellee’s witness, J. H. Beidler, says that H; M. Beidler himself contracted the debt for the property in Michigan. H. M. bought the property in his brother’s name and had his brother to execute the notes therefor, evidencing the debt which is the foundation of appellant’s right to the property in controversy. If this contention were true, then indeed appellee would be “hoist with his own petard,” for equity looks to the “real thing.” According to the contention, the property purchased in Michigan was the property of H. M. Beidler, and J. H. Beidler was merely acting as the trustee of his brother, and held it as such for him. Then, of course, equity would not permit the burden of paying for it to be shifted on to the shoulders of the trustee and agent. So, while the suit in attachment really progressed against J. H. Beidler, he being the ostensible debtor and owner of the property in Arkansas and Michigan, it was in reality the debt of H. M. Beidler, and his property that was subjected to its payment. So, if appellee’s contention in this regard were correct, it would furnish the strongest reason of all, in equity, why he could not recover. The decree of the Miller Chancery Court is therefore reversed, and the complaint of appellee dismissed for want of equity.