Rogers v. Rogers

87 Mo. 257

• Court: Supreme Court of Missouri
• Decided: October 15, 1885
• Status: Published

Opinion

Sherwood, J

I. Respecting the defence set up in defendant’s answer to plaintiff’s action of ejectment, that defendant, by a previous agreement with plaintiff, was to be permitted to redeem his land bought by his own brother, the plaintiff, at a sale under a deed of trust, it is only necessary to say that the testimony on the part of the defendant is offered to establish by parol a trust in his favor in the land sold, thereby constituting plaintiff Ms trustee. The testimony would rather seem to preponderate in favor of the plaintiff ; but granting It to be equally balanced it would be far too inconclusive to warrant a decree in favor of defendant; for the rule is that in order to establish by parol a trust in lands, the testimony must be so cogent as to leave no room for reasonable doubt in the mind of the chancellor. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. ; Mingo v. Richardson. 53 Mo. 385; Kennedy v. Kennedy; 57 Mo. 73.

II. Relief of tlie character prayed by defendant has been granted by this court in cases of this sort, “ on the foot of the fraud,” since frauds and trusts are not within the statute of frauds. Ross v. Bates, 12Mo. 30 ; Grove’s Heirs v. Fulsome, 16 Mo. 513 ; Damschroeder v. Thias, 51 Mo. 100. But notwithstanding this it would be contrary to all precedent to grant relief based on testimony so lacking in probative force as that offered by defendant, especially when considered in connection with the countervailing testimony offered on the part of the plaintiff.

Therefore, judgment affirmed.

All concur.