Opinion of the Court-Sullivan, J. find; that Mallory was quite anxious to complete said locations by doing the one hundred and sixty cubic feet of work thereon required by law. From the testimony of Mallory it is evident. that up to the time of the receipt of the letter from his wife no grubstake contract had been suggested or entered into. Mallory accompanied Robbins and Rigley to the Wind river claims, and remained there one day, and after he left for home Robbins and Rigley did the work on the Wind river claims, and delivered the location notices to a son of Mr. Rice. They did not locate themselves in said claims, or claim any interest therein for doing said work. The record shows that when the Berryman party, of which Mallory was one, discovered any ledge on said trip that they thought of sufficient value, they located it, as on Wind river. They camped on or very near the Big Buffalo ledge for two or three days, with large quartz boulders all around their camp, and evidently neither of them thought said ledge worth locating. The record shows that Mallory did. not consider said ledge of any value. R. J. McLean, apparently a disinterested witness, testified that he called Mallory's attention to the ledge on which the mines in dispute were subsequently located, and had a talk with Mallory about it. He testified: "I had some talk with Mr. Mallory about it [said ledge]. He came to our camp one night, and I says, "There is a big ledge down there, if you want to locate it—a quartz ledge.' He said that it was bull quartz,' and there wouldn't be a dollar in one hundred and sixty acres of it." If that conversation did occur, it would show Mallory's opinion of said ledge, and would rebut the idea running through Mallory's testimony that he was constantly talking about said ledge. His testimony shows that he took a piece of quartz from said ledge, and carried it to Florence with him, but that he did not think enough of it to have it assayed or tested, and did not show it to Rigley until they moved to Sand creek, if at all. The evidence shows that up to the thirtieth day of July, he was much more anxious about the claims that he had discovered on Wind river than about the big ledge at the Hump. He was going to complete those locations, and went to Florence on the 30th of July for the purpose of getting grub to sustain him while doing the necessary work Opinion of the Court-Sullivan, J. thereon. Robbins and Rigley went to Florence on that day to complete the purchase of a bill of grub (a part of which they had purchased the day before) that they contemplated taking with them for use on a prospecting trip to the Buffalo Hump to search for Berryman's lost placer mine, and whatever else they might find. Mallory, on his arrival in Florence, received a letter from his wife, requesting him to come home. The record fails to show, up to that time, that there was any intention on the part of Robbins and Rigley to go prospecting with Mallory on his and their joint account. It appears that Robbins, Mallory, Rigley and one Mitchell together had been prospecting some placer ground just prior to July 28, 1898, and Mallory testified that they prospected a little the morning of the 28th, "and that they then broke up their partnership arrangements, and all started for Florence that evening." The trial court found that Mallory remained with Rigley and Robbins while they did said work, but the testimony of both Mallory and Rigley is to the effect that he remained there one day, and that they did a little prospecting, and the next day he left for home, and after that Rigley and Robbins did the location work on said claims. As to the terms and conditions of said contract, there is a direct conflict in the testimony of Mallory and Rigley, they being the only persons present when the contract was made, except Robbins, now deceased. There is some evidence in the record that tends to corroborate Mallory and some other that tends to corroborate Rigley. The affidavit made by Mallory in which he swears that Rice had no interest in the alleged grubstake contract, his statements to numerous witnesses to the same effect, and other matters revealed by the record indicate that the utmost confidence cannot safely be placed in his veracity and truthfulness. The evidence, viewed as a whole, indicates that both respondents and appellants have done things and acts that look suspicious, and which show that they have shuffled to gain a point or avoid a responsibility in this matter. But, to give the most favorable view possible to all of the evidence for the respondents, the terms of the alleged contract are left in doubt and uncertainty, and for that reason specific performance cannot be decreed. Therefore the first error as Opinion of the Court-Sullivan, J. signed by the appellants, which goes to the sufficiency of the evidence to support the facts found by the court, must be sustained. As to the law of the case, counsel for appellants contend that, as respondents are seeking to hold the appellants as trustees of an undivided one-half of said mining claims, and to enforce the specific performance of an alleged prospector's or grubstake contract, respondents cannot have a decree upon a bare preponderance of the evidence, and that they are not entitled to a decree unless their case has been clearly and satisfactorily proven, and all doubts cleared up; while counsel for respondents contend that in this class of cases the rule is well established that a mere preponderance of the evidence is all that is required. The trial court held that a preponderance of evidence was all that was necessary to establish plaintiffs' case. Counsel for appellants cite and quote from a large number of authorities in support of their contention. Counsel for respondents contend that nearly every case cited by appellants was an action to reform a written deed or instrument, or to have a trust declared contrary to the specific terms of a written instrument, and are not applicable to the case at bar. Counsel, however, concede that the cases of Proudfoot v. Wightmun, 78 Ill. 556, and Dewey v. Land Co., 98 Wis. 83, 73 N. W. 566, require explanation, and those cases are explained by counsel by suggesting that the decisions in those cases are "simply the opinion of the court as to what the rule ought to be." We think, however, the correct rule is stated in those cases. After a most thorough examination of this question, and of the authorities cited, we conclude that the rule is well settled in a case like the one at bar that something more than a bare preponderance of the evidence is required to entitle the plaintiff to a decree declaring a resulting trust and for specific performance. In the first case above cited the court says: "In an ordinary chancery case a complainant is required to establish the allegations. of the bill by a preponderance of the evidence, but in a case of this character . . . . something more than a bare preponderance should be required." In Dewey v. Land Co., supra, (which was a case to enforce specific performance of an oral agree Opinion of the Court-Sullivan, J. ment to convey land), it is said: "Specific performance is not a matter of strict right, but rests in the sound discretion of the court, and the contract sought to be enforced must be fully and clearly proved in all its parts. A mere preponderance of evidence is not sufficient." It is held in Printup v. Mitchell, 17 Ga. 567, that a parol contract for land, like the reformation of a deed by parol proof, should be made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement. In Johnson v. Quarles, 46 Mo. 423, the plaintiff attempted to establish a resulting trust in land, and the court used the following language as to the evidence introduced, to wit: "While admitting such evidence for the purpose of creating this resulting trust, the chancellor has always required that it be clear and unequivocal." "The insecurity of titles, and the temptation to perjury, among the chief reasons demanding that contracts affecting lands should be made in writing, also imperatively require that trusts arising by operation of law should not be declared upon any doubtful evidence, or ever upon a mere preponderance of evidence. There should be no room for a reasonable doubt as to the facts relied upon." (See, also, Ringo v. Richardson, 53 Mo. 385; Barbour v. Barbour, 51 N. J. Eq. 271, 29 Atl. 148; Association v. Brewster, 51 Tex. 263; 2 Pomeroy's Equity Jurisprudence, sec. 1040.) As to the evidence necessary to establish a resulting trust in land, the court, in Reynolds v. Caldwell, 80 Ala. 232, said: "The rule is that a trust of this nature, sought to be ingrafted upon lands by parol evidence, and such as result by operation of law must be supported by testimony not only entirely satisfactory, but clear and undoubted." In the case at bar plaintiffs are attempting to ingraft a resulting trust by oral evidence upon mining ground, the title to which, as against every one except the government of the United States, is admitted to be in the defendants, who are appellants here; and to contend that the rule herein laid down only applies to written instruments, and does not apply to titles to mining land acquired by location under the laws of the state and the United States, is attempting to point out a distinction in a matter where in fact no difference exists. The appellants' title rests on discovery and proper lo Opinion of the Court-Sullivan, J. cation, filing for record a proper notice of location, and complying with the law therein. The title results from a compliance with the law. The title is in appellants. Respondents seek to ingraft thereon a resulting trust, whereby they may be decreed to be the owners of an undivided half interest of, in, and to said three mining claims, and pray a specific performance of an alleged "grubstake and information contract," for the alleged contract sued on is not alone a "grubstake contract." As applied to respondent Rice, it is, but, as applied to Mallory, it is not, for it is alleged in the complaint that Mallory furnished "information" as his part of the consideration for said contract, and Rice furnished "grub" for his. If there is any authority that holds that a greater weight of evidence is necessary to ingraft a resulting trust on land acquired by location than on land acquired by deed, we have been unable to find it, and counsel for respondents have not called our attention to it. In either case the evidence must be satisfactory, clear, and convincing. It must be so clear and certain as to leave no well-founded doubt in the mind of the court. The evidence of the respondents, when tested by that rule, will not entitle them to a decree. The admission of the testimony of Mallory and Rice as to the conversation with Robbins at the time of making said alleged contract and prior to his death is assigned as error. Counsel for appellants contend, under the provisions of subdivision 3, section 5957 of the Revised Statutes, that Mallory and Rice were not competent witnesses to testify to any matter of fact occurring before the death of said Robbins. Said section, inter alia, provides as follows: "The following persons cannot be witnesses: . . . . (3) Parties or assignors of parties to an action or proceeding or persons in whose behalf an action or proceeding is prosecuted, against an executor or an administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person." Counsel for appellants contend that this suit is founded on a claim or demand against the estate of Robbins, deceased, while counsel for respondents contend that it is not, but that it is an action to enforce trust against the estate of said deceased, Idaho, Vol. 7-9 |