76 Iowa 192 | Iowa | 1888
J. — Watson R. Hanscome died in August, 1879, leaving surviving him the plaintiff, his widow, and four minor children. At the time of his death he owned the legal title to certain real estate, and this action was brought to partition the same. Mary E. Hanscome, the mother of Watson R., intervened in the action, and pleaded that she gave her “ son three hundred dollars with which to purchase some land on which to make her ahorne,” and.that the land in controversy was purchased with- said-money ; that it “was agreed between her and her son that the legal title to said land should remain in her said son, W atson R. Hanscome, for the benefit of the intervenor, for a home in her old age.” This petition, was verified by the intervenor. An amended and substituted petition of intervention was afterwards filed, in which it is stated that her son took a deed in his own name for the land in controversy, “without the knowledge or consent of the intervenor.” This petition was also verified by her. The relief asked by the intervenor is that ‘ ‘ the legal title to the land * * * be decreed to have been held by said Watson R. Hanscome in trust for this intervenor, and for her use and benefit,” and that she be invested with the legal title thereto, and that she have such other relief as she is equitably entitled to. The court found that the intervenor had furnished the money to her son to pay for the land, and he had taken the title in his own name, without her knowledge or consent, and,’ the death of the intervenor being suggested, George E. Warner, executor, was substituted in her place and stead, and a judgment entered in his favor establishing a lien on the land for the money the court found the intervenor had furnished her son. The plaintiff and minor defendants appeal.
The foregoing facts are, we think, uncontroverted. It will be observed that the intervenor seeks to establish a resulting trust by parol evidence, and ingraft the same upon the legal title. The rule in such case is well established, that the evidence must be clear, certain and practically overwhelming. If it can fairly be said to be doubtful whether the trust has been established, then the persons asserting it must be d eemed to have failed to establish it. Keeping this rule in mind, we, without doubt or uncertainty, have reached the conclusion that the trust has not been established. There is comparatively no evidence but that of the intervenor upon which reliance can be placed. What there is consists of random conversations or declarations made by Watson R. Hanscome, which are exceedingly indefinite and uncertain, and therefore are not entitled to much consideration in a case of this character. Nor is the evidence of the intervenor definite or certain. It was, perhaps, a misfortune that she was seventy-six years old when she testified. It cannot be supposed, in the absence of any showing to the contrary, that her memory is as good as it previously was. It is apparent that her recollection of the transaction was not always the same. This appears from the statements in the two petitions of
Beversed.