Opinion
No. 30181.
September 22, 1942.
(Syllabus.)
1. APPEAL AND ERROR — Review — Sufficiency of evidence in equity case — Disposition of cause.
In an action of purely equitable cognizance, this court will, upon appeal, review the entire record, weigh the evidence, and determine therefrom whether or not the decree of the trial court is clearly against the weight of the evidence, and if found to be so, will render, or cause to be rendered, such judgment as the trial court should have rendered, but if the decree is found not to be clearly against the weight of the evidence, it will be affirmed.
2. SAME — Evidence supporting finding that deed without consideration was not delivered with intention of passing title.
In an action equitable in nature, where the weight of the evidence supports the finding and conclusion of the trial court to the effect that a deed without consideration was not delivered with the intention of passing title, the action of the trial court will not be disturbed upon appeal.
Appeal from District Court, Jefferson County; Cham Jones, Judge.
Action by Alice McKenney against W.J. Galbraith to cancel instrument in the form of warranty deed. From judgment canceling same, the defendant appeals. Affirmed.
Brown Cund, of Duncan, for plaintiff in error.
Harley Ivy, J.L. Vertrees, and E.B. Anderson, all of Waurika, for defendant in error.
Alice McKenney, as plaintiff, sought to cancel an instrument in the form of a warranty deed which purported to convey the fee-simple title to certain real estate to her son, the defendant, Galbraith. Record title to the land was in her husband prior to the deed in question. Her theory is that she and her husband executed the questioned instrument in blank form with the understanding that the same was for the purpose of conveying the land to her, but that the defendant, who prepared the deed and who occupied a position of trust and confidence with grantors, completed the instrument so as to show on its face a transfer of title to him, against the will and intention of the grantors.
Both plaintiff and her husband were quite aged when the deed was executed. Several years later the husband died and thereafter the defendant recorded the deed. It was his contention that the deed passed title to him when it was executed and delivered.
The record discloses conflict in the testimony of the parties, each tending to support the theory advanced. However, it was undisputed that for some years after the deed to defendant was executed, the land therein described was treated as if no title had passed by the deed. Rental contracts, though negotiated by defendant, were in the name of plaintiff's husband as owner, and two small parcels of the land were sold and conveyed by deed of plaintiff's husband, as still being the owner with the right to convey. These sales likewise were negotiated by defendant, and the rentals and sales proceeds were deposited to the credit of plaintiff's husband. All of the numerous transactions with reference to the land were had in the name of plaintiff's husband as the owner, until he died some years after execution of defendant's deed, and such transactions were with the knowledge and participation of the defendant.
The defendant paid no consideration whatever for the deed, and the trial court found its execution and delivery was not intended to convey title, and did not convey title, and its cancellation was decreed.
We deem it unnecessary to further detail the evidence.
For reversal it is urged that there are inconsistencies in the extended findings of fact by the trial court, and that same do not justify or support the judgment rendered.
It is true the findings of fact do not follow in every detail the theory and contentions of plaintiff, but we do not find therein any inconsistency or any such lack of support of the judgment as to justify reversal. The findings of fact are definitely against the contentions of the defendant, and that there was no intention to pass title, and no passage of title, to defendant. We deem it unnecessary to further detail the extended findings of fact.
This action is one of equitable cognizance. The judgment is not clearly against the weight of the evidence nor contrary to the findings of fact. The evidence justifies and requires affirmance of the judgment. 26 C.J.S. 233, par. 41; Butler v. Butler, 168 Okla. 148, 32 P.2d 54; Littlefield v. Box, 163 Okla. 150, 21 P.2d 506.
Affirmed.
CORN, V. C. J., and OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. RILEY, J., absent.