Jennings v. Demmon
194 Mass. 108
Mass.
1907
Check Treatment
Rugg, J.

This appeal brings before us the questions of fact as well as of law raised upon the trial in the Superior Court, and it becomes our duty to examine with care the evidence and determine the case according to our own judgment. But in reaching this determination, due weight is to be given to the decision of the trial judge and it is not to be set aside unless it appears to be clearly erroneous. Properly and necessarily, great consideration must be given to the conclusions of fact reached by the judge who hears the evidence, where it is in large part oral', for he has opportunities to pass upon the degree of credibility to be given to the testimony of the witnesses which no appellate tribunal possesses. In the present case, the trial judge made no memorandum of findings of fact or rulings of law, but simply ordered a decree to be entered dismissing the bill. The single question to be determined, therefore, is whether upon all the evidence this finding was plainly wrong.

If the evidence proves the allegations in the bill, the plain*112tiff is entitled to a decree in his favor, for a conveyance, although absolute in form, may be shown by oral proof to have been made in trust or by way of security. There is nothing in the statute of frauds which prevents this result. Campbell v. Dearborn, 109 Mass. 130. It has not been contended in argument that the plaintiff’s claim is barred by the statute of limitations.

The plaintiff has argued cogently that the evidence shows the execution and delivery of an agreement in writing, now lost, between Marcus and the defendant, providing that the conveyance to the latter was in trust for the benefit of Marcus, or in way of equitable mortgage. There are many circumstances which support this contention, but they do not point so conclusively to this view as to demonstrate that the opposite conclusion cannot also be supported by certain aspects of the evidence. If no such agreement was made, as was contended by the defendant, and the only contract between Marcus and the defendant was the one of June 13, 1887, and if this was terminated at its expiration by the absolute conveyance from Marcus to Demmon, then the plaintiff failed to make out his case. There was testimony in support of all these propositions. When these circumstances are considered in connection with the facts that after the loss of the copy of the alleged agreement belonging to Marcus in the possession of Perry, no effort was made by Marcus or Perry to procure the copy from Demmon or in any way to perpetuate the evidence of its existence and contents, and that it was not contended that anything had been said to Demmon about it during all these years, it cannot be said that a finding adverse to the plaintiff would not be fully warranted.

It would serve no useful purpose to review the evidence in detail and weigh the inferences on the one side and the other which might fairly be drawn from it. The conclusion finally to be reached depends in large measure upon the degree of credibility to be attached to the testimony of the several witnesses. According to the decision of the Superior Court the influence to which it is entitled and upon a careful consideration of all the evidence, it does not appear that the plaintiff has sustained the burden of proving his case. It is not necessary, therefore, to consider the question of loches. The decree is to be so far modi*113fled as to include the costs of this appeal and as modified should be affirmed.. Graves v. Hicks, 191 Mass. 102.

So ordered.