Trout v. Trout

44 Iowa 471 | Iowa | 1876

Servers, Ch. J.

The testimony is all contained in the printed abstract, and comprises near one hundred pages thereof. However unsatisfactory it may be, we can only state the reasons briefly that have brought us to the conclusion readied. It would occupy too much space to even set out such portions of the testimony as seem to be regarded by counsel as the most important.

The testimony on the part of the plaintiff tends to prove the allegations of the petition, and if there was nothing contradictory thereto, we should find no difficulty in affirming the judgment of the court below. But the evidence on the part of the defendants is contradictory to that of the plaintiff and, it can be asserted with entire safety, if believed the plaintiff is not entitled to the relief asked. If this were an action at law, and the question of fact had been submitted to the court or a jury, and the finding had been either way, it could not have been disturbed. There is no such preponderance even of testimony in favor of the plaintiff as would have justified the setting aside of a verdict in favor of defendants.

To justify the decree the testimony of Daniel Trout and his ■wife, who it is presumed stand entirely indifferent between these parties, must be wholly disregarded. Their attempted impeachment is not of a character to warrant this.

T trust-when parof:Sevitoce. The transaction occurred several years ago, and the liability of witnesses who attempt to repeat conversations of snch long nding to be mistaken, requires at least that such testimony should be closely scrutinized and received with great caution. Fifield v. Gaston, 12 Iowa, 218. The rule is well settled that in order to establish a parol trust the evidence must be clear, satisfactory and conclusive. Monroe v. Graves, 23 Iowa, 597. One of the parties to the transaction being dead, the proof should be clear, unequivocal and without doubt and uncertainty. Childs v. Griswold, 19 Iowa, 362. The parties are entitled to a trial anew in this court, and no presumption can be indulged as to the correctness of the finding of the District Court. Besides this, there is great doubt, from the plaintiff’s own showing, whether the gift was an unconditional one. The land, it may be conceded, was purchased and intended for the plaintiff. But he was in debt, and1 William Trout never intended the gift as absolute, so that it could be reached by the plaintiff’s creditors. Hence the title was retained, in his own name. How can it be said the gift was absolute and unconditional, unless so to all intents and purposes?

Beyond question, if plaintiff’s creditors had attempted to subject the land to the payment of their debts, the land would have been William Tront’s, and he never intended to place it out of his power in such a contingency to claim title to the premises. This was well understood and acquiesced in by the plaintiff. The testimony of the defendants teuds to show that William Trout expected the plaintiff to pay for the land. If William Trout intended the land as an absolute gift, he -must have been imbued with an unusual share of brotherly affection, for he was not possessed of a very large amount of means, and in fact borrowed a portion of the money with which to make the first payment.

3__._. • There is nothing in the views herein expressed that militates against Hughes v. Lindsey, 31 Iowa, 329, as an authority. That case was decided on demurrer, the petition being deemed true. There is no testimony which will warrant a recovery on the counter claim. The. defendants can have a decree in this court, or, at their option, the cause will be remanded, with directions to the District Court to enter a decree in accordance with this opinion.

Reversed.