Morris v. Morris

SCOTT, Judge,

delivered the opinion of the court.

If J. P. Campbell loaned the money to Smith with which he says he paid for the land and took the deed in his own name for his indemnity by an arrangement with Smith, who was the agent of the plaintiff, then it would seem that this action has been misconceived, as the plaintiff could not ex *117 pect to recover without reimbursing Campbell or those claiming under him. The testimony of Smith as preserved in the record is very unsatisfactory. He does not say who furnished the money which he paid for the land. Whether, by contract with the plaintiff, Smith was to furnish the money for him or whether the plaintiff himself put the money in Smith’s hands, does not appear. If Campbell loaned the money and had to take a deed in his own name for his security, that is no reason why he should not be paid for writing the deed. It does no.t appear but that there may have been an arrangement with Campbell for the loan of the money with the privity of the plaintiff. The father of the plaintiff testifies that Campbell, before his conveyance to the defendant, told him that he had no claim to the land in controversy, but another witness stated that the plaintiff told him that he had been wronged by Smith. The evidence in relation to the character of Smith was all-important and should not have been excluded.

The issues in this case were very bunglingly framed. It seems they were filed after the jury was sworn, but by whom the record does not inform us. It does not appear whether the court directed them or not. The case was properly tria-ble by the court, and when cases are so directed to be tried, it is not for the parties, as a matter of course, to require a jury. The court has a discretion and should exercise it in order to determine whether the case is a proper one for a jury. We know that there are a great many cases which can with no propriety be tried by a jury. When a single material fact is disputed in a cause and the evidence is contradictory, courts will direct it to be tried by a jury; but these cases half tried by a court and half by a jury are always in perplexity and confusion. Judges should not relieve themselves by throwing the responsibility of trying causes on juries when the law contemplates that the duty shall be discharged by themselves.

The first issue is defective because it is so worded that it does not appear whether the payment of the purchase money *118 ■therein mentioned was by Campbell or by the plaintiff. It is a matter of uncertainty whether the jury was directed to find whether the plaintiff or Campbell paid the purchase money. ' It is not maintained that it may not be conjectured what the language means or what was intended, but issues submitted to a jury should be in language so plain and perspicuous that no doubt could arise as to their meaning.

The second issue directs two facts to be found, neither of which disposes of the cause, nor both together ; but, if found, merely serve as the ground-work of an inference which, if it existed, would be material in determining the controversy. This is rendered plain by the instruction given by the court, and which instruction is objectionable, as it amounts to a comment on the evidence, which the court by statute can not make but by consent.

The third issue related to the possession of the land in controversy. We do not see how the matter of possession is material in this suit. The defendant did not pretend any title to the land before his purchase from Campbell. There is no pretence that the statute of limitations has any application, or, if it has, it has not been suggested anywhere in the record. How then can the fact of possession affect the merits of the controversy ? Of what avail could it be as notice, as no title previous to the defendant’s purchase is claimed for him ? The plaintiff must show fraud in Campbell before he can succeed, and if such fraud is established, how can the defendant’s possession help him as he claims under Campbell ?

The case of the plaintiff proceeds on the hypothesis that Campbell having in bad faith procured the legal title to the land, a trust results to him to have the title reconveyed. It is very clear under this view that the statute of frauds has nothing to do in determining this controversy, as it is well settled that resulting trusts are not within the statute of frauds and perjuries.

As the judgment will be reversed it will be needless to review the instructions. They are not very perspicuous, and *119 would serve rather to confound a jury than to aid them in their deliberations. When the law is so plain, what can be the object of many instructions ? When each party takes extreme views of the law of a case, why not reject both sets of instructions and frame such as will fairly set forth the law ? From what has been said, the burden, it is obvious, is on the plaintiff to show that Campbell acquired the legal title to the land in dispute in bad faith or in fraud of the rights of the plaintiff knowingly, and that the defendant took a conveyance from Campbell with the knowledge of the bad faith or fraud on his part in acquiring the title. The char- • acter of the parties to this transaction, actors and witnesses, must and should have influence in determining it. That is not a matter for this court. It is for those who may have known them and may hear the witnesses testify.

Judgment reversed and remanded;

Judge Richardson concurs. Judge Napton absent.