| Mass. | Oct 15, 1871
Under the instructions given to the jury, their verdict must be taken to have established three facts: 1. That the land was purchased by or for the plaintiff. 2. That the purchase money paid was the money of the plaintiff; having been borrowed by him for that purpose from the defendant. 3. That the deed was taken to the defendant as security for that loan. These facts constitute a resulting trust.
So long as the trust remained unexecuted, it could be enforced only in equity. But it has been executed by a sale and conveyance of the land. The debt to the defendant and his expenses having been satisfied from the proceeds, there remains a balance of money in his hands which in equity and good conscience belongs to th3 plaintiff. This he may recover in an action at law, as for mone> had and received. The statute of frauds, Gen. Sts. c. 105, § 1, and that relating to trusts, Gen. Sts. c. 100, § 19, are no more a defence to such an action at law than they would be in equity. The only question in the case therefore is, whether the jury were properly instructed.
We discover no reasonable ground of objection to the instructions given. The jury could not have failed to understand from them that the question to be determined was whether the defend
The exception most strongly urged is to the refusal of the judge to instruct the jury that as the evidence went to impeach or contradict a deed “ it should be received by them with great caution.” It is doubtless true that courts do and should receive evidence, offered for such purposes, with caution. But it is a rule which the court itself applies. It is often announced in cases in which the court is to pass upon both law and fact. In cases to be submitted to the jury, the court will exercise the caution in the conduct of the trial, and in the presentation of considerations affecting the written and other testimony introduced. But we do not understand that it is the duty of the court to impress the jury with a suspicion of such testimony; or to give them any rule to guide them in weighing it, except the plain and simple one that their minds must be convinced by the fair preponderance of all the evidence. The rule proposed would be an uncertain and unsafe one for juries to act upon; and we think the judge properly declined to give it.
Exceptions overruled.