Anthony v. Chapman

Sharpstein, J. The most important question presented by the record is whether the finding that the consideration for the conveyance from Bird to Mary A. Smith was furnished by J. P. Smith, is justified by the evidence. The deed recites that the consideration was paid by Mary A. Smith, the grantee therein, [74]and while the express declarations of the deed in that respect may be controlled by parol proof alone, it is well settled that such evidence must be full, clear, and satisfactory. Nothing appearing to the contrary, the presumption is that the consideration was paid by the grantee in the deed; and while this presumption may be overcome by parol evidence, to produce that result such evidence must be of the character above stated.

In this case there is no direct evidence that the purchase price of the demanded premises was paid by J, P. Smith, or that the money paid therefor had ever belonged to him. There is evidence tending to prove that he was at one time possessed of means sufficient to pay said purchase price, and that Mary A. Smith was not. But there is no clear or positive evidence of this. Aside from evidence of her circumstances before she came to this coast, there is nothing beyond what some of the witnesses testify to her having said to them in loose conversations more or less remote from the date of said purchase to indicate that she was not able to pay for.it with her own money. In Willis v. Willis, 2 Atk. 71, it is said: “ There is another way of taking 'a case out of the statute, and that is by admitting evidence within the rules laid down by this court to show the trust, from the mean circumstances of the pretended owner of the real estate or inheritance, which makes it impossible for him to be "the purchaser.” But there is nothing in the evidence introduced by the defendant which makes it appear impossible or even incredible that Mary A. Smith was the purchaser of the premises conveyed to her. It does not appear that any of the witnesses professed to be familiar with her circumstances, or to have stood in any such relation to her as would naturally make them conversant with her affairs.

One witness testified to conversations with Mary A. Smith, in which she said “'Smith had lost considerable money by not tain ng her advice. He then told her that in the future she might manage his business, as she had a better head than he had.....She said it 'was easier transacting business to have it done in her name. It was Mr. Smith’s money that was used all the time. She said she never did anything, however, without consulting Mr. Smith. She never claimed to have the exclusive ownership of the property.” It does not appear at