Abdi Salim v. Kheri Salim. (PC) Civ. App. 94-D-67, 6/10/67 Biron J.

Abdi Salim v. Kheri Salim. (PC) Civ. App. 94-D-67, 6/10/67 Biron J.

The father of the parties, upon his death in 1947, left 40 children and a large estate. His property was left in a trust for all the children, and administered by the eldest son. Appellant brought this suit on behalf of himself and some of his co-heirs, claiming for the estate two housed which respondent claims he purchased from the estate. After hearing a large amount of evidence, much of which was confusing and conflicting, the primary court found that there had been a sale by the estate to the respondent but that he had not paid all of the agreed upon price. Respondent was given the option of completing payment and keeping the houses, or of returning them to the estate and reclaiming the money he had already paid.

            Held: (1) The district court upheld the decision of the primary court, on the theory that the appellant (plaintiff below) had failed to establish his claim that respondent had not purchased the house. “This is a very serious misdirection in that the burden of proof was on the respondent, who set up the sale of the two houses to him. It was therefore on him to establish such sale and not on the appellant to disprove it.” This misdirection on the part of the district court was fatal. (2) Neither of the courts below took into consideration the fact that not all the heirs were present or represented at the meeting when the alleged sale was purported to have taken place. In the abidance of all the heirs being present or represented there could not have been any firm sale. (3) Respondent was ordered to return the two houses to the estate, and to account for rents received by him from the houses.