Lipscomb, J.
The first question we propose discussing in this case is, whether the settlement between Hall and Buxton Layton, and the receipt of Hall surrendered to him by the said Layton, were procured through the fraudulent representations of Hall ?
2ndly. Assuming the hypothesis, that it was procured by fraud, is there any error in the decision of the Court below in this case?
When this case was before us at a former Term, (10 Tex. R. 55,) we reversed it, on the ground that evidence offered by the defendant in the Court below had been improperly ruled out, and that the question of the fraud of Hall had not been distinctly presented to the jury and found by their verdict. We said “ But we are not satisfied with the evidence of fraud j and “ in the absence of fraud on the part of the defendant, we are “ clear that the plaintiffs were not entitled to a recovery at all.” The case comes before us now without any additional evidence of fraud on the part of Hall, but with the finding of the jury, of fraud, on the question being distinctly presented to their consideration, and with the evidence on the part of the defendant, that had been excluded from them on the former trial.
The jury having, by their verdict, found fraud in Hall, in procuring the settlement and the surrender of the receipt, their verdict is conclusive, if the evidence upon which they found is sufficient to support it. The only evidence is that of Williams, the book keeper of the Laytons, who testifies to a conversation between Hall and Buxton Layton, in 1844. He swears that Hall, when asked by Layton to account for the scrip that had been placed in his hands for location, or for a return of it, stated to him that it was in the hands of a surveyor out west, and he feared that it had been lost, and offered to place scrip to the amount of 3200 acres in the hands of Layton, as security to him for the return of the scrip belonging to Layton & Go., and that he did give that amount of scrip [275] to him, and asked for and received the receipt which he, Hall, had given to Layton & Co. for their scrip.
Now, if this witness is correct, it would fix the fraud upon Hall, in suppressing the fact that it, or a part of it, had been located upon Galveston island, and in falsely saying that it was in the hands of the surveyor out west, and he feared that it would be lost. It is, however, the evidence of a single witness, and he swearing to a conversation between the parties, in which it does not appear that he participated, or that his attention was requested, or in any particular way attracted. Such evidence, though competent, is always received with caution, and subjected to severe scrutiny, because of the great pro-bability of the witness being mistaken in part, or not correctly •understanding, or correctly hearing the conversation; and the difficulty, if not the impossibility, of disproving it. That this is the character of such evidence, we will refer to some of the cases to which our attention has been called by the appellant’s counsel.
In Law v. Merrills (6 Wend. 227,) Walworth, Chancellor, says, “ Evidence to establish a fact, by the confession of a par- “ ty, should always be scrutinized and received with caution, “ as it is the most dangerous evidence that can be admitted in “ a Court of justice, and the most liable to abuse. Although “ a witness is perfectly honest, it is impossible, in most cases, “ for him to give the exact words in which the admission was “ made, and sometimes even the transposition of the words of a J‘ party, may give a meaning entirely different from that which “was intended to be conveyed to the witness.”
In Logan v, McChord’s Heirs, (2 A. K. Marshall.) the Court says, “ Confessions are competent testimony, but frequently “ ought to be received with caution, because they may be par- “ tially remembered, and are more easy to be procured by im11 proper means, and are frequently shielded from disproof.”
In Malin v. Malin, (1 Wend. 652,) Judge Sutherland remarks, “ It has often been said by Judges and by elementary [276] “ writers, that proof of the declarations or confessions of par- “ ties, is the most unsatisfactory species of evidence, on account “ of the facility with which it may be fabricated, and the im- “ possibility of contradicting it. And because the slightest “ mistake or failure of recollection may totally alter the effect “ of the declaration.”
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Lipscomb, J.
The first question we propose discussing in this case is, whether the settlement between Hall and Buxton Layton, and the receipt of Hall surrendered to him by the said Layton, were procured through the fraudulent representations of Hall ?
2ndly. Assuming the hypothesis, that it was procured by fraud, is there any error in the decision of the Court below in this case?
When this case was before us at a former Term, (10 Tex. R. 55,) we reversed it, on the ground that evidence offered by the defendant in the Court below had been improperly ruled out, and that the question of the fraud of Hall had not been distinctly presented to the jury and found by their verdict. We said “ But we are not satisfied with the evidence of fraud j and “ in the absence of fraud on the part of the defendant, we are “ clear that the plaintiffs were not entitled to a recovery at all.” The case comes before us now without any additional evidence of fraud on the part of Hall, but with the finding of the jury, of fraud, on the question being distinctly presented to their consideration, and with the evidence on the part of the defendant, that had been excluded from them on the former trial.
The jury having, by their verdict, found fraud in Hall, in procuring the settlement and the surrender of the receipt, their verdict is conclusive, if the evidence upon which they found is sufficient to support it. The only evidence is that of Williams, the book keeper of the Laytons, who testifies to a conversation between Hall and Buxton Layton, in 1844. He swears that Hall, when asked by Layton to account for the scrip that had been placed in his hands for location, or for a return of it, stated to him that it was in the hands of a surveyor out west, and he feared that it had been lost, and offered to place scrip to the amount of 3200 acres in the hands of Layton, as security to him for the return of the scrip belonging to Layton & Go., and that he did give that amount of scrip [275] to him, and asked for and received the receipt which he, Hall, had given to Layton & Co. for their scrip.
Now, if this witness is correct, it would fix the fraud upon Hall, in suppressing the fact that it, or a part of it, had been located upon Galveston island, and in falsely saying that it was in the hands of the surveyor out west, and he feared that it would be lost. It is, however, the evidence of a single witness, and he swearing to a conversation between the parties, in which it does not appear that he participated, or that his attention was requested, or in any particular way attracted. Such evidence, though competent, is always received with caution, and subjected to severe scrutiny, because of the great pro-bability of the witness being mistaken in part, or not correctly •understanding, or correctly hearing the conversation; and the difficulty, if not the impossibility, of disproving it. That this is the character of such evidence, we will refer to some of the cases to which our attention has been called by the appellant’s counsel.
In Law v. Merrills (6 Wend. 227,) Walworth, Chancellor, says, “ Evidence to establish a fact, by the confession of a par- “ ty, should always be scrutinized and received with caution, “ as it is the most dangerous evidence that can be admitted in “ a Court of justice, and the most liable to abuse. Although “ a witness is perfectly honest, it is impossible, in most cases, “ for him to give the exact words in which the admission was “ made, and sometimes even the transposition of the words of a J‘ party, may give a meaning entirely different from that which “was intended to be conveyed to the witness.”
In Logan v, McChord’s Heirs, (2 A. K. Marshall.) the Court says, “ Confessions are competent testimony, but frequently “ ought to be received with caution, because they may be par- “ tially remembered, and are more easy to be procured by im11 proper means, and are frequently shielded from disproof.”
In Malin v. Malin, (1 Wend. 652,) Judge Sutherland remarks, “ It has often been said by Judges and by elementary [276] “ writers, that proof of the declarations or confessions of par- “ ties, is the most unsatisfactory species of evidence, on account “ of the facility with which it may be fabricated, and the im- “ possibility of contradicting it. And because the slightest “ mistake or failure of recollection may totally alter the effect “ of the declaration.”
In the case of Tuberville v. The State, (4 Tex. R. 128,) we recognize the danger of this kind of evidence, and .the caution with which it should be received. In the case under consideration, Williams, with the honest intention of swearing to nothing more nor less than the truth, and with no disposition to color or distort the language used, might so easily have been mistaken, from failure of memory or from not hearing all that was said ; and if the conversation was relative to the balance of the scrip, left undisposed of by the arrangement with Jones, if he did not hear the whole of the conversation, it was easy and natural for him to believe that it referred to the original scrip received by Hall from Layton & Co. The circumstances in no particular corroborate the evidence of Williams ; so far from it, they are calculated to weaken and much impair, if not destroy it. The presumption is, that he must have been apprised, at the time of the supposed conversation between Hall and Buxton Layton, of the existence of Hall’s letter, which was proven by him. He does not swear when he first became acquainted with the fact of the existence of the letter ; and having been the book keeper for so long a time, for the firm of Layton & Co., it would be strange if he did not know it; and, knowing it, still more strange, that he did not make it known to Buxton Layton, when he heard Hall make a statement wholly inconsistent with it, when it would have proven the falsity of Hall’s statement. His situation and employment as the book keeper of the firm of Layton & Co., when swearing to the fact of Hall’s verbal declarations resting entirely on his memory, without the means of its being contradicted, does not strengthen, but rather weakens, his credibility ; and in review[277] ing his evidence, there will be strong grounds to believe that some of the facts sworn to by him, were not from his own personal knowledge, but derived from the Laytons. It is not a reasonable presumption, that Buxton Layton did not know of the location of the scrip on Galveston island, which information had been given to his firm by Hall’s letter; if he did not know of it, he ought to have known it, and it would be productive of much injury, to permit one member of a firm to plead ignorance of a fact, of which the firm had written evidence, and thereby set aside a settlement made by him for his firm. It would disturb and destroy the security of every settlement with a member of a firm, and shake the stability of the rule, that the acts of each member of the firm, so far as relates to the legitimate business of the concern, are binding upon all of the firm. It would be still more unreasonable to suppose that Hall would have the temerity to make a declaration, when he must have known that his own letter furnished proof of its falsity. It is much more rational to believe from the facts, that if Buxton Layton ever did enquire of Hall what had become of the scrip, that it referred to the surplus scrip, after the arrangement had been made with Jones ; and if Hall did say that the scrip was in the hands of a surveyor out west, that he referred to that surplus scrip.
We have seen that the charge of fraud, by which the origin- ’ al trust is sought to be re-established, is supported by but one witness, unsupported by a single corroboratory fact in evidence, and under circumstances that would scarcely have been regarded sufficient to sustain the finding by the jury, of the truth of the charge in any case.
It has been supposed, that the great disproportion in the value of the land located upon, on Galveston island, and the value of the scrip for which the receipt was given to Layton & Co., and given up to Hall by Buxton Layton, raises a strong and conclusive evidence of fraud. A reference to the evidence will show, that there is not the slightest ground to support [278] such an assumption. It shows that in 1844, when the settlement was made between Hall and Buxton Layton, the land located upon by the scrip, and for which Hall and Jones had received the patent, was not regarded as of any value, the general opinion being, that Hall and Jones could not hold the land under their patent, and that the land still belonged to the Republic, and that most persons would have preferred well located land scrip any where else to the title under the patent; and the evidence of the high valuation had reference to the value at the time of the trial.
We believe, however, that the question should be put upon a higher and more certain ground. We cannot, in principle, distinguish this case from the common one where a trust is attempted to be proven by oral evidence of the admission, or declarations of the trust, orally made by the trustee. When placed upon this footing, the case is relieved from all embarrassment or difficulty. The question as to what evidence was sufficient to establish a trust, by the verbal declaration of the maker of the trust, in opposition to the oath of the trustee, was thoroughly investigated by this Court, in the case of Miller v. Thatcher, (9 Tex. R. 484,) and after looking to the authorities, both English and American, we decided, in strict conformity with those cases, that it could not be supported by the evidence of a single witness, unless there were strong corroborating circumstances of what he had sworn. We do not propose to enter again into the investigation of the question, for the purpose of vindicating our opinion. We will only cite the remarks of the Master of the Rolls, Sir William Grant, in the case of Leach v. Leach, 10 Vesey, 517, quoted with approbation by Chancellor Kent in Boyd v. McLane, (1 John. Chan. 590.) “ How is the fact made out ? There is no material ev- “ idence but that of the trustee, who is made a competent wit- “ ness by a release. She swears to no fact or circumstance “ capable of being investigated or contradicted ; but merely to “ a naked declaration supposed to be made by the husband [279] “ himself, admitting that the purchase had been made with the “ trust money. That is, in all cases, most unsatisfactory evi- “ dence, on account of the facility with which it may be fabri- “ cated, and the impossibility of contradicting it. Besides, the “ slightest mistake or failure of recollection may fatally alter “ the effect of the declaration." We believe, therefore, that the Court erred in refusing to grant the motion to set aside the verdict and grant a new trial.
If the evidence had been sufficient to support the finding of the jury, we would have reversed the decree, because we believe that if Layton & Co. could have recovered any land on the locations upon Galveston island, they could not in equity have been entitled to more than a pro rata of what Hall received, himself, on the compromises shown in evidence. Equity will not tolerate the throwing the whole loss upon Hall. The judgment and decree is reversed and remanded.
Reversed and remanded.