Hays v. Gloster

McFarland, J. This action was brought for the purpose of having a trust as to certain real and personal property declared and enforced, and for an accounting, reconveyance, etc. An answer was filed, in which the material averments of the complaint were denied. There was no demurrer to the complaint, — probably because it did not appear that the alleged promises and undertakings of defendant D. M. Gloster, upon which the cause of action is based, were not in writing. But at the trial, nearly all the evidence offered by plaintiff was excluded, upon the grounds that the alleged trust was void under the statute of frauds unless in writing; that a written instrument cannot be contradicted or changed by parol evidence; and generally, that the alleged trust could not be proven by parol testimony. A jury had been called to try some of the issues; but as plaintiff, under the rulings of the court, failed to get in any material evidence, the jury was discharged, and the court gave judgment for defendants, from which, and from an order denying a new trial, plaintiff appeals. So that the question presented is practically this: Would the complaint have stated a cause of action if it had appeared on its face that the things averred as the basis of the alleged trust were not evidenced by writings?

It is averred in the complaint (substantially) that on November 23, 1883, plaintiff was, and for a long time previous thereto had been, the owner in fee and in possession of certain described land, which, with the improvements thereon, was of the value of ten thousand dollars; and also a large amount of personal property [563]on said land, consisting of horses, mules, cattle, hogs, wagons, plows, mowers, thrashing-machine, and other farming implements, grain, hay, bacon, lard, household furniture, and other personal property, of the value of ten thousand dollars; that at said time plaintiff was in very poor health, and in a feeble condition physically and mentally, and that his mind was, and for some time prior thereto had been, so far deranged that he was entirely incompetent to transact any business; and that the defendant D. M. Gloster well knew of plaintiff’s said weakness and incompetency. It is further averred that at and before said November 23, 1883, said defendant made frequent visits to plaintiff at his home on said land, and frequently and falsely represented to plaintiff that he was plaintiff’s special and warm friend, that plaintiff was being robbed and wronged by others, and that defendant was very anxious to befriend, protect, and aid plaintiff, and to take care of him in his feeble condition; that defendant falsely represented to plaintiff that he was worth one million dollars, and could easily advance money to pay any debts then owing by plaintiff, and would do so if plaintiff would turn over his property to defendant, and requested and persuaded plaintiff to transfer all said real and personal property to defendant, and to let him into possession thereof jointly with plaintiff; that defendant promised and agreed “that if plaintiff would so transfer and let him, said defendant, into the possession of said property, he, the defendant, would protect and take good care of and preserve the said property, and would manage the same for plaintiff, and in plaintiff’s interest, and out of the proceeds of said property he would pay plaintiff’s debts, and that he would provide plaintiff a pleasant and comfortable home upon said property, and would take good care of the plaintiff in his then feeble condition, and would advance any money necessary for such purposes, and that when he had paid plaintiff’s debts, and had so