Fillingham v. Nichols

BaRdeeN, J. Unless the finding can be sustained that Nichols made a deed of the premises in suit to plaintiff and thereafter suppressed it, the plaintiff has no standing in court. There is absolutely no evidence that Nichols procured the deed from Hall and wife by fraud, accident, or mistake. In absence of a showing of such facts, the rule is universal that the grantor in a deed will not be permitted to prove that a deed absolute on its face was given in trust for his benefit. Fairchild v. Rasdall, 9 Wis. 379; Clarke v. McAuliffe, 81 Wis. 104. See Kruschke v. Stefan, 83 Wis. 373; Krouskop v. Krouskop, 95 Wis. 296. The statute (sec. 2302, Stats. 1898) requires that a trust, other than those resulting by act or operation of law, shall only be created by deed or conveyance in writing subscribed by the party creating it, or by his duly authorized agent, whose authority shall be in writing. There being no proof of the creation of any trust in the manner so pointed out, we are left to grapple with the question whether a deed was in fact executed and suppressed. To reach a proper solution of this problem, we shall first consider the relations of the parties. Away back in the year 1847 Hall took the defendant Nichols, then an infant but three years of age, into his family. During his minority he treated him as a son, and received from him the service of a child. Hall was then a married man and had three children. His wife and two of his children died. In 1870 he married the plaintiff. Nichols continued to live in the family after the second marriage, and until his own marriage, and one year afterwards, and was treated as a son. He began in early youth working for Hall in the shoe business, and received little or no compensation beyond his support. Afterwards he became a partner with Mr. Hall, and later, upon his retirement from business, he formed a partnership with Mr. Hall’s son Robert. The latter died in 1889, and Nichols thereafter ran the business himself. After the son’s death, Mr. Hall was in no active — 53 — business. He continued to be on the best of terms with Nichols, called him his “dear son,” and stated that he had done very much to help him accumulate his property. This was the situation of affairs when the deed to Nichols was executed on August 9,1894. At that time Hall was seventy-five years of age, and in somewhat feeble health. The circumstances of the execution and delivery of this deed are especially significant. The deed was drawn under the direction of Mr. O. H. Orton, an attorney living at Beloit. Mr. Orton was produced as a witness, and detailed at length the circumstances of the transaction. He visited Mr. Hall at his house, who gave him directions as to the preparation of the deed. He wanted a simple warranty deed, and stated that all other matters with reference to the business were understood between himself and Nichols, and that he had the utmost confidence in his carrying out his wishes without any writing on the subject; that Nichols understood that he and his wife were to have the rents and profits of the property during their lives. He further told the witness that Nichols had always been a faithful and worthy son, and that they intended that he should have all the property after they got through with it. All they expected was the income from it, and they trusted Nichols to give them the profits of the property. The witness further stated that only the one deed was drawn, and that there was no talk or suggestion that Nichols and wife were to deed this property to Mrs. Hall. Orton went to his office, caused the deed to be drawn, and went back, had it executed, and took the acknowledgment. He took with him a Mr. Sandall to witness the deed, who was also produced as a witness. To him Mr. Hall stated that he was anxious to have the matter fixed up because he wanted Nichols to have what he considered to be his just due. He had always been a good boy, and he (Hall) had always looked upon him as a son, and now, as he had no children of his own, all they cared for was the use — 54 — of the property as long as they lived, and that they would trust him as to their securing the rents from it. This conversation was had in the presence of Mrs. Hall, who duly signed and acknowledged the execution of the deed. By Mr. Hall’s direction, Orton took the deed to his office, and thereafter delivered it to Nichols. In the fall of that year Mr. Hall told Mr. Hayward, an old-time friend, that he had deeded a part of his property to Nichols. In the spring of 1895 he made a similar admission to another witness. There is also testimony from other witnesses along this same line made at later dates. These are undisputed facts in the case. We have thus far purposely omitted reference to the testimony of defendant Nichols. He gave testimony strongly supporting his.side of the case. He is, however, an interested party. Some of his testimony was clearly incompetent under the statute, as was also some of the testin\pny given by plaintiff, which covered transactions with the deceased. He is in direct dispute with a large number of witnesses who testified to admissions claimed to have been made by him regarding the title to the property, and concerning which we will have something to say hereafter. Both himself and Mrs. Nichols deny that they ever executed any deed to the plaintiff. No such deed was produced, and no witness was sworn who ever saw any such instrument, or who was willing to say that such a paper was ever drawn or ever had legal existence. Whether any such deed ever in fact existed is a pure matter of speculation. The trial court, by its sixth finding, says that about the time the deed to Nichols was executed he conveyed the premises in question to plaintiff, and that both deeds were placed in a drawer in his safe, with other papers of Hall’s, and to which drawer Hall had a key. No one pretends that there is any direct testimony to support this finding. Such a finding seems to have been deemed necessary to support the theory of a delivery of the deed. Neither has the eleventh finding, regarding the con — 55 — cealment and suppression of this deed, any direct evidence to support it. Both findings rest upon inferences and deductions from the testimony, which are claimed to be of such probative force as to warrant the conclusion reached. The plaintiff’s case rested, first, upon declarations and statements of Nichols; second, upon declarations and statements of Hall; and, third, upon the conduct of the respective parties. With reference to the alleged admissions made by Nichols, they may be summarized by the statement that at different times, and especially after Mr. Hall’s death, he stated in casual conversation with the different witnesses that Hall had deeded the stores to Mrs. Hall, or that she owned all the property and he was left nothing, and that he thought that Mr. Hall had been unfair to him. With one or two exceptions, these statements were made to parties who had no interest in the controversy, and who were merely attempting to satisfy an idle curiosity. In view of what this court has frequently said regarding this class of testimony, it is hardly necessary to do more than refer to the cases. It is universally considered as the weakest kind of evidence that can be produced. Haven v. Markstrum, 67 Wis. 493; Emery v. State, 101 Wis. 657. The same is true of the alleged admissions of the deceased. Moreover, the weight of such admissions is greatly lessened by the fact that proof was made of admissions by him that are directly contradictory. It should be observed also that none of the admissions alleged to have been made by Nichols go to the fact of the existence of a deed. They relate rather to admissions in derogation of his title, and not to the manner in which his title became divested. Considering these alleged admissions by themselves, they are hardly sufficient to create a robust suspicion against him. There are certainly some things in the conduct of Nichols to give color to the court’s conclusion. The transfer of the insurance on the stores to Mrs. Hall, the giving of the note by him to her when he held her unpaid note, and the — 56 — signing of tbe petition for street grading as agent, are circumstances of more or less cogency in support of that view. But are they, when grouped with the other facts in the case, of such convincing weight as to completely overturn a solemn deed and convict the defendant of a criminal fraud ? We think not. This is one of the class of cases where the proof should be of the clearest and most satisfactory character to warrant relief. The proof should be such as to establish the facts beyond reasonable controversy. There can be no relaxation from this rule without greatly disturbing the integrity of titles. The rule so often laid down in cases somewhat similar to this may be found noted in the following cases: Harter v. Christoph, 32 Wis. 245; Lavassar v. Washburne, 50 Wis. 200; Meiswinkel v. St. Paul F. & M. Ins. Co. 75 Wis. 147. To entitle the moving party to relief, the evidence must show something more than probabilities; more than mere appearance of truth. As has frequently been said, the facts proven should be of such positive character and of such convincing force as to point to the conclusion reached beyond reasonable controversy. Giving to the evidence of plaintiff its utmost probative force, it does not go beyond the realm of probability. That is not sufficient. We are met at the outset by a solemn instrument vesting title in Hiohols. Added to this is the positive testimony of the circumstances under which it was drawn, and of the statements made by the grantor at the time, in absolute confirmation of the defendants’ position. We have an utter failure of proof as to the existence of any deed executed by Niohols. The execution of such a deed would be of no avail without delivery. The plaintiff makes no claim that she ever supposed any such deed was ever in existence. At one time she went so far as to deny ever having executed the deed to Niohols, but she was forced to abandon that position. We cannot, within reasonable limits, refer to the multitudinous — 57 — circumstances relied upon by plaintiff to establish her case. We admit that there are many things shown hard to reconcile with the fact that Nichols was to remain the absolute owner of this property. We meet this, however, with the extreme probability that, if Hall intended this property should be conveyed to his wife, he would have had both deeds prepared at the same time. Why should he delay or postpone it? No explanation of any kind is offered. Again, if a deed had in fact been drawn and properly executed by Nichols and wife, it is strange that the witnesses or the officer taking the acknowledgment have not appeared. It may be that such a deed was executed, but we are unable to say so with that certainty the law requires. Hence, in obedience to our conviction and the mandate of the law, we are compelled to reverse the judgment of the trial court, and remand the case with directions to dismiss the action. By the Gourt.— So ordered.