George A. Lofton, Appellant, vs. Norman B. Sterrett, et al., Appellees, 23 Fla. 565

Mr. Justice Raney delivered the opinion of the court: We feel satisfied that the consideration for the tax certificate was paid by the complainant and his sister Jennie, who subsequently intermarried with Rorman B. Sterrett, one of the defendants. Though it is not expressly proved when the transfer of the certificate to Alexander Lofton, the father, was executed by Brown, the presumption is that it was done at the time he sold it to the children.

This transfer or assignment is endorsed on the back of the certificate, and, although it is without date, it is proved that the certificate was carried by the children from Brown to their father, and there is nothing to show that Brown ever had any further connection with it. As against the father a trust resulted in the certificate, and in the rights it gave to a title to the land, and was carried into the land itself by the subsequent acquisition of the legal title by the father under the certificate. Perry on Trusts, sections 124, 126, 130, 127, 148. He admits the trust.

What the exact amount of-the consideration paid to Brown, or the portion of it paid by each of the two children was, we are not informed. The answer of Rorman B. Sterrett states that at the time the deed from the father to Mrs. Sterrett was executed the matter was discussed in his presence by the father, and the complainant and Mrs. Sterrett, and complainant claimed that Mrs. S. owed him $16 on account of that sum advanced by him to purchase the certificate, and that the father promised to repay him this sum, and that this promise was accepted by complainant as satisfactory at the time.

This part of the answer is responsive to the bill, and is at least a circumstance indicating that the money demanded was the only claim or objection he had against a conveyance of the two-thirds of the land to,his sister. The letter of July 30,1882, from complainant to Normau B. Sterrett, must be regarded as referring to the property in question ; and it shows that the complainant was acting as agent of the defendant in renting and managing the property and paying taxes, and that he regarded it as the prop, erty of the mother and the three defendants, her heirs.

The following statement of the letter: “ In fact, Mr. Sterrett, had I used any of the rent I would not be doing anything but right; but as father saw fit to satisfy one whom he loved, by taking my share, he did so. I do not regret it as to her and her young, but I do not want to be censured by you every year as to the tax, &c.,” and the allegations of the answer as to the $16, and the discussion at the time of the execution of the deed to Mrs.

Sterrett, and the fact of the recognition of the title of her heirs, (her husband and children,) derived from her, and consequently of her title under this deed, produce in our minds the conclusion that there was an assent upon complainant’s part to the conveyance to Mrs. Sterrett, and that he did not at the time of the execution of such deed to her claim any resulting trust in the land conveyed by it. It is true that at the time the conveyance to Mrs.

Sterrett was made the complainant was a minor, but according to the testimony of one of the two witnesses who speak as to his age, he reached his majority in 1880, and he, by his acts, ■shown by the letter referred to above, and performed subsequent to attaining his majority, ratified the agreement by which he assented to the conveyance to his sister. Schouler’s Domestic Relations, §§438 and 439.

According to this testimony about five years intervened between his attaining his majority and the filing of this bill, and there is no act of his brought to our attention as occurring during this period which shows any disposition to disturb the title of his sister. The quotation given from his letter disclaims even any regret as to the deed having been made, in so far as his sister and her children were concerned, and, considered as a whole, and in connection with the other parts of the letter, cannot be regarded as indicating any desire or intention to disturb it as against any one.

The rule in cases of this character is, that the complainant’s proof must be full, and clear and unequivocal. Baker vs. Vining, 30 Me., 121; Sayre vs. Fredericks, 17 N. J. Eq., 205 ; 11th Humphreys, 83.

If we ignore the objections of the inadmissibility and illegality of some of the testimony as relating to transactions with a deceased person, and consider all of it as set forth in the statement of the ■ease, we still find ourselves unable to say that we are satisfied from the proofs that the complainant is entitled to a decree that he is the equitable owner of any particular portion or interest in, or quantity of, the land in question. The proofs do not justify any such decree against the heirs of Mrs. Sterrett. Baker vs. Vining, supra ; McGowan vs. McGowan, 14 Gray, 119 ; Olcott vs.

Bynum, 17 Wall., 44 ; Reynolds vs. Morris, 17 Ohio St., 510. The burden is upon the complainant to make clear proof of his case, and to enable the court to decree that he is entitled to a definite interest in the land as against the party holding the legal title; and if he fails to do this the bill must be dismissed. It has, we are aware, been held that in the absence of speciñe proof of the exact amount contributed by each of the real purchasers, the presumption is, that each furnished an equal part of it; (Shoemaker vs.

Smith, 11 Humphreys, 81,) but in view of the testimony before us we do not think such rule can be reasonably invoked as between the complainant and his sister or her heirs. Hot only is there no proof showing what particular portion of the purchase money of the whole land conveyed to the father-was contributed by the complainant, but the subsequent dealings between him and his sister and father are inconsistent with his claim to any interest in the land conveyed to his sister.

The fact that we are left in the dark as to what disposition has been made of the balance of the land conveyed to the father, and, consequently, do not understand the whole matter of the alleged trust as between the complainant and his sister or her heirs, does not strengthen the complainant’s case. Baker vs. Vining, 30 Me., 125 ; Gascoigne vs. Thwing, 1 Vernon, 366 ; all that can be done, in view of the testimony» is to leave the complainant and the heirs of his sister where his Ovvn dealings have placed them, and recognized them as entitled to stand. The decree is affirmed.