Opinion of the court by
Pancoast, J.:
The record shows the gravamen of the action to be the fraud and deception practiced upon O’Conner and his wife when in an enfeebled condition, the wife particularly being in such mental condition that she was unable to make a contract, and the entire want of consideration in the contract.
The record fails to disclose any direct evidence whatever of any promise, act or persuasion, undue influence or deception practiced by Brennan upon either of the O’Con-ners. It might possibly be claimed that these facts were inferentially shown by the evidence. This would entirely depend upon the construction given to the testimony of cer
tain witnesses. The material part of the evidence offered by the plaintiff below was that bearing upon the condition of the mind of Mrs. O’Conner at or near the time of the conveyance. It is contended in plaintiff’s brief, that there was no conflict in the testimony of the witnesses as to the condition of Mrs. O’Conner’s mind, yet the record discloses the number of witnesses who testified upon that question to be about six on one side and eight upon the other. There is no evidence whatever that John O’Conner was not a man in his full mental vigor, such as men usually are at the age he was when he signed the deed sought to be cancelled by this action. He was then sixty-five years old. That Mrs. O’Conner was suffering physically from the effect of a stroke of paralysis which had occurred something near a year prior to the execution of the deed, there is no question, and at the trial there was no attempt to deny the fact. But, what effect, if any, that affliction had upon her mental condition was the only serious controversy at the trial. There were two or three witnesses who testified to statements made to them by John O’Conner, in the absence of Brennan, and subsequent to the execution and delivery of the deed, tending to show that the transfer was not made in good faith. These statements, however, are so clearly incompetent to sustain any of the allegations in the petition that this court will not consider them here. They were probably allowed to be made as many such are when a case is being tried to the court without a jurjq and no doubt were not weighed by the court in his consideration of the case.
Notwithstanding the fact that the plaintiff offered no evidence to prove the allegation of fraud,.deception, undue
influence and want of consideration, the defendant offered evidence showing the .financial condition existing between O’Conner and himself, and showing that he had paid to O’Conner, in a manner understood and agreed upon by them, the full value of the land conveyed to him. Á fairly well kept book of account of their transactions was offered in evidence, showing each specific item, both debit and credit of the account between them. This was contradicted in no manner whatever, so that not only did the plaintiff fail to show a want of consideration for the transfer, but the defendant offered abundant evidence upon that point. Taking the defendant’s evidence alone, it indicates that the dealing between himself and O’Conner was fair, honorable and upright, and this is contradicted, as stated before, only by inferences drawn from the testimony of the several witnesses produced by plaintiff.
The main and really the only contention of plaintiff in error in this court is that at the time of the transfer, Ann O’Conner was in such a mental condition as to be incapable of joining in the transfer or assenting thereto, and that, as a legal result, the conveyance was void for the reason that the land sought to be conveyed was a homestead, the law requiring conveyances in such cases to be the joint act of the husband and wife.
■ The real proposition involved, • that is, whether Ann O’Conner was or was not in such mental condition as to be capable of conveying the premises or assenting thereto, is one which must be determined from the evidence. The legal proposition may be conceded that if .Ann O’Conner had not sufficient mental capacity to make a legal contract, then her
act of joining in tbe conveyance was a nullity, and as a matter of course, tbe conveyance would be void. But bow is-this court to determine tbe mental capacity of Ann O’Conner? Plaintiff in error says there is no conflict in tbe testimony of tbe witnesses as to tbe condition of Mrs. O’Conner’s mind at or near the time of this conveyance; yet we-find from an examination of tbe record that Vincent Brennan, in testifying upon this subject, says that he saw Mrs. O’Conner when the deed was signed; that the deed was read over to her before she signed it, and’was explained to her; that she said that she knew what it was; and that the colored 'girl there explained it to her. This same witness also says that he did not see anything at that time to indicate that Mrs. O’Conner did not know what she was doing, or did not understand it; that when they rode up there, she was sitting by the stove, in a chair, with a table close by, and that she turned around and signed the deed at the table, signing by making her mark; that'Mr. Burwell the notary public, himself, this colored girl, a white man, Mr. O’Conner, and Mrs. O’Conner were all there together; that three of the persons signed the deed as witnesses.
Mr. A. C. Burwell testified that he did not have a clear recollection of all the matters that took place; that he went there to take the acknowledgment of the deed; that he thought he had a talk with Mrs. O’Conner; that he waited there a while, but did not remember much about the conversation, but that his recollection was that he'went there with Mr. Brennan in a buggy, and that his son went there on a wheel; that when he got out there, Mr. O’Conner was not in the house; that Mrs. O’Conner was sitting in a large
invalid’s chair, and the colored girl was there. Mr. Brennan went to find Mr. O’Conner, and during the time he was away, the witness was in the room talking with Mrs. O’Conner, but does not remember any of the conversation that he had with her; that he must have talked some ten minutes with her; that from his observation of her condition, he thinks she knew what she was doing when she signed the deed; nothing occurred to him at the time which caused him to think she was not rational, and in her right mind; that he saw she was an invalid, and was sitting in the chair; that she had recovered somewhat, or was convalescing from some attack she had had, and was feeling better; that if anything had happened to make him think that she was not of sound mind, he would not have taken the acknowledgement to the instrument.
Mr. Childers, also a witness for the defense, testified that he was acquainted with the parties; that he worked on an adjoining place; that he visited at the O’Conners’ place three or four times; that he had a- conversation with Mrs. O’Conner, and from what occurred in his presence, she seemed so far as he could tell, to know what she was doing. Mr. Albert Mount, also, testified that he was acquainted with the O’Conners; that in the fall of ’96 he was working for Brennan; that he visited at O’Conner’s house; that at one time he went into the house to ask about the health of Mrs. O’Conner; that he shook hands with O’Conner, and asked Mrs. O’Conner if she knew him, and she held out her hand and said, “This is Mr.
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Opinion of the court by
Pancoast, J.:
The record shows the gravamen of the action to be the fraud and deception practiced upon O’Conner and his wife when in an enfeebled condition, the wife particularly being in such mental condition that she was unable to make a contract, and the entire want of consideration in the contract.
The record fails to disclose any direct evidence whatever of any promise, act or persuasion, undue influence or deception practiced by Brennan upon either of the O’Con-ners. It might possibly be claimed that these facts were inferentially shown by the evidence. This would entirely depend upon the construction given to the testimony of cer
tain witnesses. The material part of the evidence offered by the plaintiff below was that bearing upon the condition of the mind of Mrs. O’Conner at or near the time of the conveyance. It is contended in plaintiff’s brief, that there was no conflict in the testimony of the witnesses as to the condition of Mrs. O’Conner’s mind, yet the record discloses the number of witnesses who testified upon that question to be about six on one side and eight upon the other. There is no evidence whatever that John O’Conner was not a man in his full mental vigor, such as men usually are at the age he was when he signed the deed sought to be cancelled by this action. He was then sixty-five years old. That Mrs. O’Conner was suffering physically from the effect of a stroke of paralysis which had occurred something near a year prior to the execution of the deed, there is no question, and at the trial there was no attempt to deny the fact. But, what effect, if any, that affliction had upon her mental condition was the only serious controversy at the trial. There were two or three witnesses who testified to statements made to them by John O’Conner, in the absence of Brennan, and subsequent to the execution and delivery of the deed, tending to show that the transfer was not made in good faith. These statements, however, are so clearly incompetent to sustain any of the allegations in the petition that this court will not consider them here. They were probably allowed to be made as many such are when a case is being tried to the court without a jurjq and no doubt were not weighed by the court in his consideration of the case.
Notwithstanding the fact that the plaintiff offered no evidence to prove the allegation of fraud,.deception, undue
influence and want of consideration, the defendant offered evidence showing the .financial condition existing between O’Conner and himself, and showing that he had paid to O’Conner, in a manner understood and agreed upon by them, the full value of the land conveyed to him. Á fairly well kept book of account of their transactions was offered in evidence, showing each specific item, both debit and credit of the account between them. This was contradicted in no manner whatever, so that not only did the plaintiff fail to show a want of consideration for the transfer, but the defendant offered abundant evidence upon that point. Taking the defendant’s evidence alone, it indicates that the dealing between himself and O’Conner was fair, honorable and upright, and this is contradicted, as stated before, only by inferences drawn from the testimony of the several witnesses produced by plaintiff.
The main and really the only contention of plaintiff in error in this court is that at the time of the transfer, Ann O’Conner was in such a mental condition as to be incapable of joining in the transfer or assenting thereto, and that, as a legal result, the conveyance was void for the reason that the land sought to be conveyed was a homestead, the law requiring conveyances in such cases to be the joint act of the husband and wife.
■ The real proposition involved, • that is, whether Ann O’Conner was or was not in such mental condition as to be capable of conveying the premises or assenting thereto, is one which must be determined from the evidence. The legal proposition may be conceded that if .Ann O’Conner had not sufficient mental capacity to make a legal contract, then her
act of joining in tbe conveyance was a nullity, and as a matter of course, tbe conveyance would be void. But bow is-this court to determine tbe mental capacity of Ann O’Conner? Plaintiff in error says there is no conflict in tbe testimony of tbe witnesses as to tbe condition of Mrs. O’Conner’s mind at or near the time of this conveyance; yet we-find from an examination of tbe record that Vincent Brennan, in testifying upon this subject, says that he saw Mrs. O’Conner when the deed was signed; that the deed was read over to her before she signed it, and’was explained to her; that she said that she knew what it was; and that the colored 'girl there explained it to her. This same witness also says that he did not see anything at that time to indicate that Mrs. O’Conner did not know what she was doing, or did not understand it; that when they rode up there, she was sitting by the stove, in a chair, with a table close by, and that she turned around and signed the deed at the table, signing by making her mark; that'Mr. Burwell the notary public, himself, this colored girl, a white man, Mr. O’Conner, and Mrs. O’Conner were all there together; that three of the persons signed the deed as witnesses.
Mr. A. C. Burwell testified that he did not have a clear recollection of all the matters that took place; that he went there to take the acknowledgment of the deed; that he thought he had a talk with Mrs. O’Conner; that he waited there a while, but did not remember much about the conversation, but that his recollection was that he'went there with Mr. Brennan in a buggy, and that his son went there on a wheel; that when he got out there, Mr. O’Conner was not in the house; that Mrs. O’Conner was sitting in a large
invalid’s chair, and the colored girl was there. Mr. Brennan went to find Mr. O’Conner, and during the time he was away, the witness was in the room talking with Mrs. O’Conner, but does not remember any of the conversation that he had with her; that he must have talked some ten minutes with her; that from his observation of her condition, he thinks she knew what she was doing when she signed the deed; nothing occurred to him at the time which caused him to think she was not rational, and in her right mind; that he saw she was an invalid, and was sitting in the chair; that she had recovered somewhat, or was convalescing from some attack she had had, and was feeling better; that if anything had happened to make him think that she was not of sound mind, he would not have taken the acknowledgement to the instrument.
Mr. Childers, also a witness for the defense, testified that he was acquainted with the parties; that he worked on an adjoining place; that he visited at the O’Conners’ place three or four times; that he had a- conversation with Mrs. O’Conner, and from what occurred in his presence, she seemed so far as he could tell, to know what she was doing. Mr. Albert Mount, also, testified that he was acquainted with the O’Conners; that in the fall of ’96 he was working for Brennan; that he visited at O’Conner’s house; that at one time he went into the house to ask about the health of Mrs. O’Conner; that he shook hands with O’Conner, and asked Mrs. O’Conner if she knew him, and she held out her hand and said, “This is Mr. Mount;” that she shook hands, and he asked after her health, and she said, “As well as ever.” At that time Mrs. O’Conner told Mount that they had sold their
place. Mr. Davison also testified that he lived adjoining farms with the O’Conners; that he was at their house at different times, and that his wife called there to see her; that at times she was going about the house, doing her work; that he noticed nothing wrong; that she made inquiry about a girl, wanted to hire a -girl; says he saw nothing wrong with her mind; that he thinks she would understand the application and nature of a contract and a deed. Mrs. Nellie Brennan was also called; says that she resided just across the road from the O’Conners, and was there frequently; that she knows of Mrs. O’Conner’s having a stroke of paralysis, but did not know the year; that she went to her house, and waited on her during her sickness; that Mrs. O’Conner was getting better when the witness moved to town; that she did not notice that her mind was in any way different during the sickness than it was at other times. The witness states that she thinks that Mrs. O’Conmer would be able to know the nature of a deed; that she knew the witness, and talked to her very well; and that she seemed to know everything, and talked rationally about the household affairs.
All of this testimony was concerning a period of time following the stroke of paralysis. Mrs. Brennan is the wife of the defendant, R. C. Brennan.
This, in the main, is the testimony of the witnesses for the defendant upon the proposition as to the mental condition of Mrs. O’Conner at the time that the deed was executed.
With this testimony in the record before us, it certainly cannot be held that there was no conflict in the testimony of the witnesses as to the condition of Mrs. O’Conner’s mind at the time of the conveyance.' The statements of the
witnesses on behalf of the plaintiff, upon this subject, were just as positive, and perhaps a little more positive, that Mrs. O’Conner’s mind was in such a condition that she was incapable of contracting, as' those of the defendant that her mind was not affected; so that, as disclosed by the record, we can say that there was a square conflict of the evidence upon this one main proposition.
Under such circumstances, this court will not undertake to weigh the evidence, nor will it set aside the findings of the trial court. An appellate court is never warranted in reversing the trial court on the facts, unless there is an entire failure of proof upon some material and necessary point. This rule has been so repeatedly upheld both in this Territory and in Kansas, from which state our code is taken, that it has become a settled rule of practice. There have been various ways of stating this proposition by the different courts, but the statement of the law upon this subject, as contained in the case of
Carmichael v. Pierce et al.
10 Okla. 176, is probably as good a statement as any we have noticed. It is as follows:
“Where the matters involved in a decision of the district court are purely matters of fact, and the jury is waived and the cause is submitted to the court, the decision will not be disturbed by this court if the evidence reasonably tends to support the judgment of the court.”
The other decisions of this court upon this proposition are:
Osborne v. Case et al.,
11 Okla. 479;
Smith v. Spencer,
8 Okla. 259;
Douthitt v. The Territory,
7 Okla. 55.
Some of these eases cite cases 'in various states in support of the proposition. We think the question, being one of practice, is so well settled by the decision of this court,
tbat it is unnecessary to cite the decisions of other courts in support thereof.
The trial court had before it the witnesses; it had the advantage of looking, into their faces, and could determine more accurately the truthfulness or untruthfulness of their statements. It could note their demeanor upon the witness stand, their conduct generally, their apparent intelligence, and all other matters that go to help a trial court in determining the weight of the evidence and the credibility of the witnesses. For the reasons herein expressed, the judgment of the trial court is affirmed.
Irwin, J., who presided in the court below, not sitting; Burford, C. J., absent; all the other Justices concurring.' .