LARKINS VS RHODES, 5 Port. 195

GOLDTHWAITE, J.

On the thirtieth of August, eighteen hundred and thirty-three, the complainant Larkins, exhibited his bill in the Circuit Court of Jackson county, against the defendant Rhodes — Charging, that a short time before the land office was opened, for the entry of lands, situate in Jackson county, he entered into co-partnership with Rhodes, in entering lands in said county, and after the parties had examined and surveyed several tracts, he, the complainant furnished Rhodes with three hundred and eight dollars, which was to be used in purchasing on joint account, five half quarter sections; that Rhodes was to supply one half of the necessary funds, for this purpose, and as the said sum furnished by complainant, was more than one half the cost, the balance was to be applied to the entry of other lands, to be owned in the same manner.

The complainant alleges that Rhodes made the entries with the money thus furnished by complainant, and a like sum supplied by himself — that he has taken the patents in his own name, and refuses in any manner to recognize the complainant as having any right or interest in the lands so entered; and he prays a division of the lands, that an account of the rents and profits may be taken, and for general relief.

The respondent denies all the allegations of the complainant, relative to a co-partnership of any description, and also denies the receipt of any money from the complainant, for the purpose of entering lands on joint account. He admits the receipt of the sum of money named in the bill, but insists it was paid to him on account of debts which were due from complainant to respondent; which are stated to be as follows: No. 1. A balance due on a note, due 1st March, 1826, of $66 40 2.. A note due 10th March, 1830, for 275 3. A debt for money lent to pay for land of Ely Monks, 101 25 4.

A note of Jonathan Martin, due 18th February, 1830, which complainant had promised to pay to respondent, 50 00 The respondent admits that he received the sum charged in the bill, in the manner following, that two hundred dollars were sent to him by one William Larkins; which was applied— 1. To the payment of No. 1, $66 40 2. To the payment of No. 2, 101 25 3. To the payment of No 4, in part, 32 35 200 00 The remaining one hundred and eight dollars, were paid to him by complainant in person, and applied, 1. To the payment of the balance' due on No. 4, $19 66 2.

The balance of the sum was credited on No. 2, 88 34 — 408 00 ' 308 00 Respondent also alleges that he sued complainant on the note, number two, in Tennessee, and recovered a judgment against him for the balance due, and sets forth as an exhibit to his answer, an exemplification of that judgment. On a reference to this exhibit, it appears that judgment was rendered in the cause, two days previous to the exhibition of complainants bill. This judgment was appealed from and confirmed in the appellate Court on the fifteenth of January, eighteen hundred and thirty-four.

A number of witnesses were examined on interrogatories, whose testimony, so far as is considered material, will be hereafter examined; and the cause was heard on the bill, answer, exhibits and testimony, in the Court below, which dismissed the bill, and decreed costs against the complainant; which decree he now seeks to reverse by writ of error. The facts disclosed by the bill, present the complainant’s equity, on his own statement, in two aspects: 1st. A right to one half of the lands alledged to have been entered by respondent by virtue of the co-partnership- 2d.

An interest in the same to the amount of the funds furnished by him to respondent, and actually invested in lands, by reason of which a trust would result to the complainant. — Botsford vs Burr. The evidence taken on behalf of the complainant, though strong to induce the belief that a co-partnership actually existed between the parties, in relation to the entry of some lands, entirely fails to make out any agreement in writing. Indeed it is not contended that any written agreement ever existed, evincing a co-partnership.

So far therefore as the cause is .to be considered in this aspect, it may at once be dismissed as clearly withuvthe statute of frauds. Considering the case as one of a resulting trust, by reason of the funds alleged to have been supplied by the complainant, which were used in the entry of lands, as he asserts, it becomes essential to ascertain if the answer of respondent admits the charges of the bill, and sets up .new matter in-avoidance, which it is necessary to support by evidence; or. whether it substantially denies all the allegations, and thus forces the complainant to proof.

The bill charges, the advance of the sum of money named, with a particular and specific object, to wit, its investment in lands; and the charge is clearly divisible into two parts.

The answer admits the advance of money, or rather the receipt of it; but entirely denies the fact charged, that it was to be invested in lands in joint account, and insists that it was received as a payment If the answer had admitted the advance of jtnon-ey,- but denied its investment, it is conceived to be clear, that it would lie with the complainant, to establish the latter fact; and the distinction, if one exists, is not perceived between that case, and the one under consideration. — See Hart vs Ten Eyck.

It may then be assumed that the onus of proving the case rests on the complainant; but before entering on the examination of the evidence, it may be premised that the complainant charges, that the fact, of the payment or advance of the one hundred and eight dollars, part of the three hundred and eight, is alone within the knowledge of the res-pendent, and that he has no means to prove it. unless it be admitted.

Ely Monks, a witness for the complainant, states that respondent had agreed to enter witness’ land, but afterwards declined doing so, giving as a reason, that complainant and himself, were about to enter lands in co-partnership; and then said, witness could get the money from complainant, who had a plenty, and that he himself intended to get some from him. Complainant directed respondent to leave money for the Duncan land with the Register, and he would be responsible for respondent’s half, if lost.

William Larkins stages, that soon after the preference rights, in Jackson county, ceased by limitation, (sometime in eighteen hundred and thirty,) the complainant gave him two hundred dollars, to take to the respondent — one hundred and fifty of which was land office money, the other fifty was not. The money was accompanied with a note to John Acklin, requesting him to take it and furnish respondent with land office money. This he gave to respondent, who afterwards informed him that Acklin changed the money; but that he had to borrow from some friends, to make out his entries.

James Hall states' that he travelled with respondent from Jackson county to Huntsville, and was informed by him that he was going there to enter lands; that the money he got from Larkins, was of Yeatman and Woods’ bank, and that complainant had told him to go to John Acklin, who would change it for him. Witness went to Aoklin’s with respondent, who handed him some money or papers, and then with the money he received from Acklin, went to the land office, and entered land.

Respondent told him, he then left at the land office one hundred dollars, to enter one of the tracts of land now in controversy, designated as Duncan’s place. Dabney Lipscomb states, that from hearing the parties converse, about the time of the entry of lands, he believes it was distinctly understood between them, to what entries, the money advanced by the complainant, was to be applied.' He also states that he understood, (from whom, he does not inform us,) complainant had furnished respondent with money, to enter lands in partnership.

Peter Cartwright was present at the house of the complainant, at a time when the respondent was there, and on something being said about a settlement by complainant, the respondent produced some papers, and as witness thought, commenced calculating interest. Something was named about land, of which complainant wanted a part — on this respondent became very a'ngry and would not settle, and said complainant should not have any of the land, for he had the advantage of him, and he intended to keep it Witness was called on by complainant to notice what respondent said.

This is all the evidence in the case, which has. any bearing on the advance of money by the complainant to the respondent, and it is not very satisfactory to establish the intention of the respondent, to’use the money advanced by complainant, in the entry of land on joint account. The testimony of Monks, is not in any way inconsistent with the answer, so far as the receipt of the money is at issue; nor does the evidence given by William Larkins, tend in the least to disprove the answer. The money which he carried to respondent, might have been a payment to him, on account of what was previously due.

Hall’s testimony is also not at variance with the answer.

It must however be confessed; that the full proof, which is made, of an agreement between the parties, to enter some lands in co-partnership, which is in direct contradiction of the answer, has an influence .on this case, which it is difficult to resist; and this, when coupled with the declaration, made in the presence of Cartwright, and the conversations held with the complainant, in the presence of Lipscomb, would induce the conclusion, that the money, or at least two hundred dollars of it, had been furnished by the complainant to the respondent, under the expectation that it would be laid out in lands, for their joint account; but if this was the result to which the Court could arrive, no relief could be extended, because none of the testimony in the .cause, identifies or describes the lands which were purchased, at the time the entry was made by the respondent, and spoken of by the witness Hall.

On the complainants own shewing, then, there could be no decree in his favor; but much doubt is removed from this case, by the testimony of the wit nesses, who have been examined for the respondent. The deposition of James Rhodes, William Rhodes, George Griffin, and Charles Blackwell, were objected to in the Court below, without pointing out any specific objection to the same, and it is here- contended, that the commissioner’s certificate is irregular, because it shews the commission to have been executed, on the twenty-eighth of February, when the signature was affixed, and dated the twenty-third of that month.

Without deciding that an objection can be taken in this general mode, to depositions, when offered on the final hearing of a cause, we are all of opinion, that the one taken can have no effect. The latter date, if repugnant with the previous one, would be rejected, as of no consequence, whatever; as it is not required that the certificate of the commissioner, should be dated: and the Court must intend that here the error is a mere slip of the pen, if in truth it does hot derive its existence from the individual, who transcribed the record in this case.

So far as the testimony given by the complainant’s witness, Eli Monks, has any bearing in the cause, he is completely discredited by Griffin and Blackwell, who depose that they have repeatedly heard him assert that he knew nothing in relation to this controversy. James Rhodes supports the answer of respondent, about the loan of one hundred dollars, to enter Monk’s land. He also proves that complainant borrowed from respondent, two hundred and seventy-five dollars, in February eighteen hundred and thirty, which were to be re-paid for respondent to enter lands.

He also proves a fact wholly inconsistent with any idea that the entry of Duncan's land, spoken of by Monks and Hall, was intended by the parties as a partnership transaction, as the complainant offered to give respondent two hundred and fifty dollars for the tract, provided he could swap it for another place named. William Rhodes also says he was present when respondent was going to survey the Duncan place, after he had entered it, and complainant said he had made a good entry, and intimated a willingness to trade for it.

This witness fully confirms the answer as to the loan of two hundred and seventy-five dollars, for which note, number two, was given. This sum, respondent told complainant, he must have to enter land with, and complainant der dared it should be repaid, even if he had to go in hank for it, About the time of entering land, respondent applied to complainant to repay him, and was informed he did not then have it, but he would get it and pay him in a few days.

The payment sent by William Larkins, was made in the presence of this witness, who was sent by respondent to complainant for more money, hut not finding him at home,he left a message to that effect with his family. This evidence on the part of the respondent, if it does not divest the case of difficulty, certainly so far confirms and supports the answer, so as to render it sufficiently certain, that the money sent by complainant to respondent, was not laid out in lands on joint account, but was applied to the payment of the demands then held by respondent against complainant.

The Court lias somewhat unnecessarily stated the evidence in this case at length, hut its object has been solely to show, that the case does not come within the principles which govern Courts of Equity, in enforcing a resulting trust.

In the English Gases, parol evidence is not admitted to establish a resulting trust against the answer.* In this country, although parol evidence is admissible to raise a resulting trust, yet it is always received with great caution; and to entitle a complainant to a decree, the proofs should make the case clear beyond all reasonable doubt.—Boyd vs McLean —Steere vs Steere— The decree of the Court below must be affirmed with costs. 2 John. Ch. 405. 2 John. C. 62. 1 John. C. 586. 5 John, C. 1. Sug. on Vend. 619 620. Sug. on Vend. 616 and cases cited.