Opinion by
Beatty, C. J., Lewis, J.,
concurring.
The plaintiffs filed a complaint in the nature of a bill in equity, setting up substantially the following state of facts: In November, 1864, James Bolán & Co., being merchants, either insolvent or in failing circumstances, made an assignment to defendant, one of their creditors, of all their effects. In January following James Bolán, to carry out the purpose of the assignment, executed a deed to defendant for a piece of real estate in California. Said assignment was made in trust that defendant would sell the property, [123]*123etc., and pay all the creditors of Bolán & Co. pro rata. Plaintiffs further aver that defendant accepted the trust, and at the time of the creation of the trust plaintiffs and their assignors were among the creditors of Bolán & Co., to the extent of over two thousand dollars. That defendant went on to sell and collect the assets of Bolán & Co., and declared a dividend among the creditors. That after the dividend was declared plaintiff had notified defendant of his claims, and demanded his share of the dividends; but defendant had refused to pay the same, and had fraudulently converted plaintiff’s share to his own use, etc., etc. Defendant denies that he ever received any assignment of the effects of Bolán & Co., otherwise than as an absolute sale and delivery. He denies the existence of any such trust as is alleged in the complaint; denies that the conveyance of the California property was in furtherance of any such; trust as alleged in the complaint. He denies that he took or held, the property in trust, as alleged in the complaint.
Defendant, after these denials, goes on to give his own version of' the transaction. He says that, being the largest creditor of Bolán & Co., and knowing their embarrassed circumstances, he proposed to the other creditors to assign their claims to him for collection. The following named creditors did assign theirs as specified:
M. Wertheimer....................$ 68 55
John Naglee...................... 447 02
M. Evans........................ 24 75
W. L. Ross....................... 87 91
Sullivan & Cashman................ 2,096 80
J. II. Cutter...................... 683 23
Gr. Venard....................... 175 00
Defendant’s claim.................. 2,591 02
Total.................$6,174 28
With these claims in hand he proceeded to negotiate with J ames Bolán & Co. for the purchase of their stock of goods, etc.; did make a purchase; and transferred to Bolán & Co. a sufficient amount of these claims, receipted in full, to cover the purchase.
He further says, after this transaction was completely closed, and the goods, etc., in his possession, he proposed to the present [124]*124plaintiff and his assignors that they should also assign their claims to him, and he would do his best to collect them. That they declined because Bolán had some property in Virginia which had not been sold or assigned, and plaintiff and other Virginia creditors hoped to make their debts out of this property. Defendant then entered into further negotiations with Bolán to get other security for the balance of claims in his hands. That Bolán, being influenced by plaintiff, refused to enter into further negotiations, and he then attached the California property. After the attachment, Bolán deeded him the California property at a price much above its value. Defendant realized from the personal property, chose in action, and the California real estate $4,346.54, which he distributed pro rata among the claims assigned to him.
These assigned claims he receipted in full and handed over to Bolán, who received them as full consideration for what he had sold or assigned to defendant. The case 'came on for trial, and the plaintiffs first introduced the following instrument:
“ Know all men by these presents, that we, James Bolán & Co., of Virginia City, State of Nevada, merchants, for and in consideration of the sum of fifty-four hundred and twenty-five dollars, to us in hand paid by R. G. Sneath, of San Francisco, California, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained, sold, and delivered, and by these presents do bargain, sell, and deliver unto the said R. G. Sneath, all the goods, wares, merchandise, chattels, and effects mentioned and described in the schedule hereunto annexed and marked A, contained in the brick store, corner of B and Union Streets, Virginia City, together with the book accounts, notes, safes, horses and wagons, and all other personal property, whether mentioned in the above schedule A or not. To have and to hold the said goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, to his and their own proper use and benefit forever; and we, the said James Bolán <& Co., for ourselves and heirs, executors, and administrators, will warrant and defend the said bargained goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, from and against all persons whomsoever.
[125]*125“■ In witness whereof, we have hereunto set our hands and seals this seventeenth day of November, 1864.
“ Jambs Bolán & Co. [Seal.]
“ J. E. Smith.” [Seal.]
Then the plaintiff offered in evidence the deposition of J. E. Smith. Before the deposition was read, the defendants made the following objection to it:
“ Defendant objects to all testimony, and all that class of testimony in the said deposition in relation to a parol trust, as incompetent and irrelevant: first, because it varies the contents of a written instrument; and secondly, because under the statutes of this State there can be no such thing as a trust under parol constituting a parol trust outside of a written agreement.”
They also made the same objections to the deposition of James Bolán.
The depositions were read, and the Court- below seems to have been guided almost exclusively by the testimony contained in these two depositions in the conclusions at which it arrived.
Whether the depositions should have been read or not, is, we think, rather problematical. If read, it could only be for one purpose, and that to establish fraud on the part of the defendant in procuring the bill of sale, above quoted. No evidence' can be admitted for the purpose of engrafting a parol trust upon an instrument which purports to be an absolute gift (except in ease of fraud or mistake). (See Hill on Trustees, page 60.) Here was an absolute bill of sale of certain chattels. “ To have and to hold the said goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, to his and their own proper use and benefit.”
To attempt to prove that these goods, etc.,were assigned intrust for the purposes claimed by plaintiff, is simply to attempt to contradict every material portion of the bill of sale. Such evidence was wholly inadmissible.
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Opinion by
Beatty, C. J., Lewis, J.,
concurring.
The plaintiffs filed a complaint in the nature of a bill in equity, setting up substantially the following state of facts: In November, 1864, James Bolán & Co., being merchants, either insolvent or in failing circumstances, made an assignment to defendant, one of their creditors, of all their effects. In January following James Bolán, to carry out the purpose of the assignment, executed a deed to defendant for a piece of real estate in California. Said assignment was made in trust that defendant would sell the property, [123]*123etc., and pay all the creditors of Bolán & Co. pro rata. Plaintiffs further aver that defendant accepted the trust, and at the time of the creation of the trust plaintiffs and their assignors were among the creditors of Bolán & Co., to the extent of over two thousand dollars. That defendant went on to sell and collect the assets of Bolán & Co., and declared a dividend among the creditors. That after the dividend was declared plaintiff had notified defendant of his claims, and demanded his share of the dividends; but defendant had refused to pay the same, and had fraudulently converted plaintiff’s share to his own use, etc., etc. Defendant denies that he ever received any assignment of the effects of Bolán & Co., otherwise than as an absolute sale and delivery. He denies the existence of any such trust as is alleged in the complaint; denies that the conveyance of the California property was in furtherance of any such; trust as alleged in the complaint. He denies that he took or held, the property in trust, as alleged in the complaint.
Defendant, after these denials, goes on to give his own version of' the transaction. He says that, being the largest creditor of Bolán & Co., and knowing their embarrassed circumstances, he proposed to the other creditors to assign their claims to him for collection. The following named creditors did assign theirs as specified:
M. Wertheimer....................$ 68 55
John Naglee...................... 447 02
M. Evans........................ 24 75
W. L. Ross....................... 87 91
Sullivan & Cashman................ 2,096 80
J. II. Cutter...................... 683 23
Gr. Venard....................... 175 00
Defendant’s claim.................. 2,591 02
Total.................$6,174 28
With these claims in hand he proceeded to negotiate with J ames Bolán & Co. for the purchase of their stock of goods, etc.; did make a purchase; and transferred to Bolán & Co. a sufficient amount of these claims, receipted in full, to cover the purchase.
He further says, after this transaction was completely closed, and the goods, etc., in his possession, he proposed to the present [124]*124plaintiff and his assignors that they should also assign their claims to him, and he would do his best to collect them. That they declined because Bolán had some property in Virginia which had not been sold or assigned, and plaintiff and other Virginia creditors hoped to make their debts out of this property. Defendant then entered into further negotiations with Bolán to get other security for the balance of claims in his hands. That Bolán, being influenced by plaintiff, refused to enter into further negotiations, and he then attached the California property. After the attachment, Bolán deeded him the California property at a price much above its value. Defendant realized from the personal property, chose in action, and the California real estate $4,346.54, which he distributed pro rata among the claims assigned to him.
These assigned claims he receipted in full and handed over to Bolán, who received them as full consideration for what he had sold or assigned to defendant. The case 'came on for trial, and the plaintiffs first introduced the following instrument:
“ Know all men by these presents, that we, James Bolán & Co., of Virginia City, State of Nevada, merchants, for and in consideration of the sum of fifty-four hundred and twenty-five dollars, to us in hand paid by R. G. Sneath, of San Francisco, California, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained, sold, and delivered, and by these presents do bargain, sell, and deliver unto the said R. G. Sneath, all the goods, wares, merchandise, chattels, and effects mentioned and described in the schedule hereunto annexed and marked A, contained in the brick store, corner of B and Union Streets, Virginia City, together with the book accounts, notes, safes, horses and wagons, and all other personal property, whether mentioned in the above schedule A or not. To have and to hold the said goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, to his and their own proper use and benefit forever; and we, the said James Bolán <& Co., for ourselves and heirs, executors, and administrators, will warrant and defend the said bargained goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, from and against all persons whomsoever.
[125]*125“■ In witness whereof, we have hereunto set our hands and seals this seventeenth day of November, 1864.
“ Jambs Bolán & Co. [Seal.]
“ J. E. Smith.” [Seal.]
Then the plaintiff offered in evidence the deposition of J. E. Smith. Before the deposition was read, the defendants made the following objection to it:
“ Defendant objects to all testimony, and all that class of testimony in the said deposition in relation to a parol trust, as incompetent and irrelevant: first, because it varies the contents of a written instrument; and secondly, because under the statutes of this State there can be no such thing as a trust under parol constituting a parol trust outside of a written agreement.”
They also made the same objections to the deposition of James Bolán.
The depositions were read, and the Court- below seems to have been guided almost exclusively by the testimony contained in these two depositions in the conclusions at which it arrived.
Whether the depositions should have been read or not, is, we think, rather problematical. If read, it could only be for one purpose, and that to establish fraud on the part of the defendant in procuring the bill of sale, above quoted. No evidence' can be admitted for the purpose of engrafting a parol trust upon an instrument which purports to be an absolute gift (except in ease of fraud or mistake). (See Hill on Trustees, page 60.) Here was an absolute bill of sale of certain chattels. “ To have and to hold the said goods and property unto the said R. G. Sneath, his executors, administrators, and assigns, to his and their own proper use and benefit.”
To attempt to prove that these goods, etc.,were assigned intrust for the purposes claimed by plaintiff, is simply to attempt to contradict every material portion of the bill of sale. Such evidence was wholly inadmissible. The depositions objected to attempt to prove a parol agreement, simultaneous with the bill of sale, that the goods were to be disposed of and the proceeds held for pro rata distribution amongst all the creditors of Bolán & Co.
The evidence, so far as it relates to the bill of sale, was objection[126]*126able, not because of anything in our Statute of Frauds, but because it was in violation of an established common law rule that you cannot contradict, vary, or explain a deed by parol evidence.
In regard to real estate deeded in California, there would be two objections to admitting parol evidence to show it was deeded in trust. The one, the same as that to the bill of sale; the other, it would be in direct conflict with the sixth section of the Statute of Frauds of California (fifty-fifth section of our Act in regard to Conveyances) to permit a trust in lands to be established by parol. If, however, the defendant, by fraudulently promising to hold the proceeds of these goods for distribution pro rata among all the creditors, obtained this bill of sale and conveyance of the California real estate, then the law would hold him as a trustee for those for whose benefit Bolán and his partner supposed they were making the sale and conveyance.
• If then the evidence to which we have alluded was admissible, it was only so to prove fraud. Fraud is not properly set up in the complaint; indeed, the complaint is perhaps equally defective in other respects. But if the evidence, made out a case of any kind for the plaintiffs, we would probably send it back with leave to amend. We will then examine the evidence and give to it that consideration to which it would be entitled if the complaint was properly drawn to meet the evidence.
In our opinion, the evidence utterly fails to show fraud. The •first contract and bill of sale were made in San Francisco. No one was present but Bolán, the defendant, defendant’s clerks and a Mr. Sullivan, who was one of the defendant’s assignors. Of all those who were present, Bolán alone is called on by the plaintiffs to prove the circumstances of the transaction. He states the transaction in such a way as to present the conduct of the defendant in a very unfavorable light. If we were to take all Bolán says as strictly true, perhaps we would be forced to the conclusion that the conduct of the defendant was fraudulent, and be compelled to hold that there was a resulting trust arising from that fraudulent conduct in favor of plaintiff. But there is not a particle of evidence corroborating the statement of Bolán. His statement directly contradicts the written and sealed instrument which he executed. What [127]*127Bolán said to his partner Smith, in Virginia, after he had executed the instrument in San Francisco, is certainly entitled to no consideration. Defendant had nothing to do with that. Bolán may have made any number of false statements to Smith, and that could not affect defendant, if he had nothing to do with his statements.
Defendant himself is called as a witness; his statement accords with and does not contradict the writing. He produces the written memorandum of Bolán, showing that according to Bolan’s own estimate the firm was insolvent; but that Bolan’s individual property, which was nearly all in Virginia City, would more than pay all debts left unpaid after the firm assets were exhausted. The defendant says that whilst he took the bill of sale to secure the debts he then represented, to wit: his own debt and some San Francisco debts which were assigned to him, and which he immediately receipted and handed over to Bolán, he did agree that if Bolán would assign to him his individual property in Virginia, he would act as the common agent of all the creditors, and divide the proceeds pro rata among them all. The testimony abundantly proves that he did attempt to carry out this agreement. He tried to get the Virginia claims assigned to him. This, one of the plaintiffs, L. Feusier, proves. And the reason why the Virginia creditors would not assign to him was, that they were in doubt as to whether they would do best to assign their claims to defendant or to look to the individual property of Bolán. Under the law as it then stood, the Virginia creditors could have attached Bolan’s property, whilst the San Francisco creditors could not. Now, it is rather improbable that Sneath, representing at the time the San Francisco creditors, and those only, would have taken property confessedly insufficient to pay the debts of Bolán k Co., and receipted those debts in full, which he then represented, and at the same time agreed to divide what he had with the Virginia creditors, leaving Bolan’s individual property untouched. Bolán represented his Virginia property as more than adequate to pay all his Virginia debts. Sneath, governed by these representations, was, of course, willing to take all the property, and let all the creditors come in pro rata.
Sneath’s testimony is not only sustained by the bill of sale, but in reality by all the surrounding circumstances. If the facts stated [128]*128in a sealed instrument may be contradicted and the deed set aside and declared void merely on the testimony of one of the contracting parties, who says the facts did not exist as stated in the instrument, then there is no safety in entering into contracts.
In this case, there was no evidence justifying the Court below in arriving at a conclusion that defendant held the goods sold by Bolán & Co. in any other way than as the bill of sale (which was under seal) says they shall be held.
That the defendant did in good faith try to carry out his agreement to get Bolán to assign the Virginia property to him, and did try to get the Virginia claims all assigned to himself, is beyond question. Both Feusier and Forestill, who are interested in those claims, admit they were solicited to assign their claims and failed to do so. They hesitated about doing so until Bolan’s Virginia property had all disappeared or been swallowed up in some rvay. Some of the Virginia creditors did assign, and defendant let them in for a pro rata dividend. Had the present plaintiffs done the same thing, they would probably have fared the same. Had the Virginia claims been promptly transferred to Sneath, he might have attached Bolan’s property then, if he had refused to make the assignment.
The plaintiffs seem to have lost their debts by hesitation and delay. We see no evidence, except the insufficient testimony of Bolán, to prove fraud or misconduct on the part of Sneath.
This is air equity case, and as such it is within the province of this Court, in a proper case, to direct what decree shall be entered in the Court below. As in this case there is not the slightest doubt what the decree should have been, or what it ought to be, without putting the parties to the expense of a new trial, we will finally dispose of the case.
The judgment of the Court below must be reversed, and a judgment for costs entered in favor of defendant; and the Court below is so directed.