ON PETITION FOR REHEARING The appellee, in his petition for rehearing, says that in our opinion we have transgressed the well-established rule that an appellate tribunal cannot weigh the evidence and thereby substitute its decision for that of the trial court. He bases his contention on the answer the husband made to certain questions propounded by appellee's attorney at the conditional examination of the husband before the Referee in Bankruptcy for the Northern District of Indiana in the matter of the husband's bankruptcy. These questions and answers are as follows:
"Q. Mr. Vonville, when you purchased that farm the money that you used to purchase it was contributed by both you and your wife was it not?
"A. That is right; we sold a piece; sold a piece of property.
"Q. And what piece of property was that?
"A. On May Street in Hammond.
"Q. I say you and your wife each contributed 50-50 per cent as a result of the sale of that May Street property?
"A. Yes."
We did not refer to this evidence in our original opinion because we did not regard it as substantial evidence *Page 208 with probative value to support the burden which is on 7. appellee in this case. By substantial evidence we mean such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion. Consolidated Edison Company v. National Labor Relations Board (1938), 305 U.S. 197, 229, 230, 59 Sup. Ct. 206, 83 L.Ed. 126, 140; 9 Wigmore on Evidence (3rd ed.) § 2494, p. 299. By probative value we mean evidence "carrying quality of proof and having fitness to induce conviction." Carter v. Commonwealth (1932), 245 Ky. 257,53 S.W.2d 521.
We have not changed our opinion in reference to these questions and answers for the following reasons: It is a matter of common knowledge that it is an almost universal custom for married 8. persons to claim equal ownership in the property and possessions of each other. The term "my" or "our" is used constantly and interchangeably in reference to children of the marriage. The same is true of an automobile, the legal title to which is in either the husband or the wife. The record of the examination at which the above quoted testimony was given leads inescapably to the conclusion that this was the idea the husband had in mind. Because, when he was questioned in reference to a tractor acquired after the purchase of the farm, to the following question: "Did you buy that from the proceeds of the farm?" he answered: "That is meaning my wife? Yes." Furthermore, in the trial of this cause the husband testified he did not understand the question when it was propounded to him at the hearing before the Referee.
In equitable actions of this nature the rule is that "While a resulting trust may be established by parol evidence: `It is settled by a complete unanimity of decisions that such 9. evidence must be clear, *Page 209 strong, unequivocal, unmistakable, and must establish thefact of the payment by the alleged beneficiary beyond a doubt.'" (Our emphasis.) Bullerdick v. Miller (1926),85 Ind. App. 369, 378, 152 N.E. 280; Pillars v. McConnell (1895),141 Ind. 670, 40 N.E. 689; Hutton v. Cunningham (1902),28 Ind. App. 295, 297, 61 N.E. 1138. To the same effect see long list of authorities from England, Canada, United States and most of the states of the Union, 23 A.L.R. 1502 and 1516. The evidence now relied on by appellee does not bring him within this rule, particularly in view of all the evidence in this case which we set out in substance in our original opinion.
We have carefully re-examined the questions presented by this appeal and adhere to our original opinion that appellee did not sustain the burden which was upon him to show he was 10. harmed by this transaction. Furthermore, it is clear from the record that in the long interim intervening between the time the debt to the Bonding Company accrued and the commencement of this action the interests of not only the husband but of the innocent wife have so materially changed that the judgment of the trial court does them irreparable injury. Equity will not sanction such conduct. Penn Mutual Life InsuranceCompany v. Austin (1898), 168 U.S. 685, 42 L.Ed. 626, and authorities there cited; Ryason v. Dunten (1905),164 Ind. 85, 95, 96, 73 N.E. 74; Ferguson v. Boyd (1907),169 Ind. 537, 548, 549, 81 N.E. 71, 82 N.E. 1064; Kroeger v. Kastner (1937), 212 Ind. 649, 653, 10 N.E.2d 902; Grantham RealtyCorporation v. Bowers, Jr., Trustee (1939), 215 Ind. 672, 685, 686, 22 N.E.2d 832.
The petition for rehearing is denied.
DRAPER, C.J. — did not participate in the decision of this case. *Page 210