The evidence presented by appellant in the trial court does not rise to the quantum required by Oklahoma. Marshall v. Amos, 471 P.2d 896 (Okl. 1970); Marshall v. Amos, 300 P.2d 990 (Okl. 1956). We conclude there was no illegality surrounding the procurement of these funds.
The Oklahoma Supreme Court has defined a constructive trust as being such as is, "raised by equity in respect of property which has been acquired by fraud, or where, though acquired without fraud, it is against equity that it should be retained by him who holds it." Marshall v. Amos, 471 P.2d 896 at 905 (Okla. 1970). The burden of proof is on one who seeks to establish a constructive trust.
1980); Haskell Lemon Const. Co. v. Independent School District, 589 P.2d 677 (Okla. 1979); Marshall v. Amos, 471 P.2d 896 (Okla. 1970). [A]n element of unfairness in allowing the legal title holder to retain the property is not sufficient to justify the imposition of a constructive trust.
It does not mean the greater number of witnesses testifying to a fact but means that which, to the mind of the trier of fact or the seeker of the truth, seems most convincing and more probably true. Marshall v. Amos, 471 P.2d 896, 905 (Okla. 1970); Morris v. Leverett, 434 P.2d 912, 924 (Okla. 1967); Peyton v. McCaslin, 417 P.2d 316, 321-22 (Okla.
Sandpiper North Apartments v. Am. Nat. Bank, Okla., 680 P.2d 983, 991 (1984); Amoco Production Co. v. Lindley, Okla., 609 P.2d 733, 745 (1980); Regal v. Riegel, Okla., 463 P.2d 680, 683 (1970).Sandpiper North Apartments v. Am. Nat. Bank, supra note 45 at 991; Snow v. Winn, Okla., 607 P.2d 678, 680 (1980); Marshall v. Amos, Okla., 471 P.2d 896, 897 (1970) (the court's syllabus). The evidence relevant to this inquiry consists of, for example, testimony by a witness for the Commission that "non-compliance" with the requirements of the Unclaimed Property Act is "widespread" among banks in this state.
However, the Court of Appeals' majority opinion did not specifically explain what ambiguity it found in the language of the warranty deed. Nor did the appellate court conclude that the district court decree in this action of equitable cognizance was clearly against the weight of the evidence or contrary to law or established principles of equity. Nilsen v. Tenneco Oil Co., 614 P.2d 36 (Okla. 1980); Marshall v. Amos, 471 P.2d 896 (Okla. 1970); Voris v. Robbins, 52 Okla. 671, 153 P. 120 (1915). Instead, the majority relied on appellants' argument to reform the 1940 deed in accord with the subsequent circumstances and acts of the parties.
See also Haskell Lemon Const. Co. v. Independent School District Number 12 of Edmond, 589 P.2d 677 (Okla. 1979); Marshall v. Amos, 471 P.2d 896 (Okla. 1970). A careful reading of the cases in this jurisdiction, in which the imposition of a constructive trust was sought, reveals that an element of unfairness in allowing the legal title holder to retain the property is not sufficient to justify the imposition of a constructive trust.
This is surely a case that we cannot substitute our judgment for the judgment of the trial court whose remarks at the time of judgment indicate he was careful to observe the witnesses and assess their testimony, especially when we conclude as we do here that the trial court's judgment is not against the clear weight of the evidence. Marshall v. Amos, Okla., 471 P.2d 896. Affirmed.
Accordingly, Re/Max is not bound by that agreement or the order of the bankruptcy court entered pursuant thereto. See Deets v. Hamilton Management Corp., 2 Kan. App. 2d 425, 581 P.2d 826 (1978); Marshall v. Amos, 471 P.2d 896 (Okla. 1970). Therefore, the court erred in entering its judgment which precluded the plaintiffs from proceeding against Re/Max on the promissory note.
A constructive trust is such as is raised by equity in respect of property which has been acquired by fraud, or where, though acquired without fraud, it is against equity that it should be retained by him who holds it. Marshall v. Amos, Okla., 471 P.2d 896 (1970). Appellants' evidence does not establish a basis for declaring a constructive trust.