Gilmore v. Watson

By the Court. — McDonald, J. delivering the opinion. The notes were given for property, the legal title to which was in the intestate of the plaintiff in error, they were made payable to him, and the legal interest and title to the notes were in him, and they came legally to the possession of the defendant, as administrator. Upon a careful examination of the evidence on both sides of this case, we are of opinion that the verdict of the jury is contrary to the evidence. There is but little in the testimony of defendant in error to prove, contrary to the strong evidence of the plaintiff, that the legal title is not in the plaintiff’s intestate. Two of the witnesses for the defendant in error, testify to a conversation, not positively, but from their impressions. This kind of testimony is very weak, and entitled to but little consideration against the positive evidence of other witnesses. The workman who repaired some part of the house was paid by the intestate. It is true he had referred him to Johnson for pay, but Johnson did not pay. The evidence of the Sheriff does not strengthen the case of the plaintiff below. It proves that the intestate referred him to Johnson to pay an execution issued on a judgment founded on a note which was given for the property; and that, on application to him he did not pay. The evidence shows, to my mind, that if the party [65] has a remedy, it is in a Court of equity. It would be a rather hard case to allow the trustee of a married woman to recover in an action of Trover, from the administrator of a former deceased trustee, property which he held in trust, when the proceedings showed clearly that the trustee was largely in advance to his cestui que tfust. It is far from settled in our mind, that the intestate was in fact a trustee; and that this case shows anything more than the effort of a brother io aid a sister whose husband was in reduced circumstances, to support herself and her family. Judgment reversed.