MR. JUSTICE ANGSTMAN:
Plaintiff brought this action to quiet title to certain described real property situated in Silver Bow county. Defendant Ruby Ellen Sanders is the wife of plaintiff. She filed an answer denying plaintiff’s ownership of the property and by separate defense alleged her ownership thereof.
The property in question was originally purchased from Emma Jane Cobb. The deed was taken in the name of plaintiff. On May 27, 1936, plaintiff made and executed a deed of the property to defendant. The principal question presented in the case is whether or not there was a delivery of this deed by plaintiff to defendant.
The court after trial found the issues in favor of defendant and against plaintiff. Plaintiff’s motion for new trial was denied and he appeals from the judgment. The court specifically found that the deed of May 27, 1936, from plaintiff to defendant Ruby Ellen Sanders was delivered to her and that she has been in possession thereof ever since. The deed was placed of record on September 27, 1945.
The court found that defendant contributed $500 at the time the property was purchased as the purchase price, thereof, and later made other substantial contributions to the purchase price of the property and to its upkeep. The court specifically found that defendant is now and ever since the delivery of the deed has been the lawful owner of the property.
Numerous specifications of error are made by plaintiff but they resolve themselves into one main question, namely, was there a delivery of the deed. Our province on the appeal is to determine whether or not the findings and conclusions of the court are supported by substantial evidence.
It is true that in an equity case this court has the right to make independent findings of fact after a review of all [597]*597of the evidence. That is the effect of R. C. M. 1947, section 93-216, and see: Harrison v. Riddell, 64 Mont. 466, 210 Pac. 460; In re Benson’s Estate, 110 Mont. 25, 98 Pac. (2d) 868; Miller v. Miller, 121 Mont. 55, 190 Pac. (2d) 72; Hart v. Barron, Mont., 204 Pac. (2d) 797.
Bnt if there is in the record substantial evidence supporting the findings of the trial court we will not interfere with those findings. Barcus v. Galbreath, Mont., 207 Pac. (2d) 559; Sanders v. Lucas, 111 Mont. 599, 111 Pac. (2d) 1041; Conway v. Fabian, 108 Mont. 287, 89 Pac. (2d) 1022; Hayes v. Moffatt, 83 Mont. 214, 271 Pac. 433; Reynolds v. Trbovich, Mont., 210 Pac. (2d) 634. And where the evidence is conflicting we follow the conclusion of the trial judge by reason of the fact that he has the advantage denied to us of observing the witnesses and noting their conduct and demeanor on the stand. Welch v. Thomas, 102 Mont. 591, 61 Pac. (2d) 404; Lewis v. Bowman, 113 Mont. 68, 121 Pac. (2d) 162; Sanger v. Huguenel, 65 Mont. 236, 211 Pac. 349; Opp v. Boggs, Mont., 219 Pac. (2d) 647. That is what Chief Justice Brantly had reference to in the early case of Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6, 8, where in pointing out the duty and power of this court in an equity case, in reaching its own conclusion he said this court must, “so far as it may” exercise “a due regard for the findings of the district court, based, as they are, upon the testimony of witnesses delivered ore terms in the presence of the court”.
The evidence given by defendant briefly summarized is to this effect: That the deed from the Cobbs was to be made to both plaintiff and defendant; she supposed that had been done not having read the deed. When her attorney examined the abstract which was after she had the deed from plaintiff, she learned that the deed from the Cobbs was to plaintiff alone. She said that on May 27 or 28, 1936, plaintiff, prior to taking a long trip by airplane, handed the deed in question to her saying: “Here, Ruby, I am going to give you what I promised you; I always promised I would take care of you. Take this and keep care of it. ” In a few days she took it to her attorney, Mr. Frame, [598]*598and he advised her to record it. This she decided to do and placed it in her purse and laid it aside from time to time thinking she would record it when she would be up town. At the time the deed was given to her it was a fresh, clean deed. She carried the deed “back and forth” intending to recoil it when she was up town but never had sufficient time to do so. She had the deed in her possession from the 27th or 28th of May 1936 until it was recorded by her attorney at her direction on the 27th day of September 1945. From September 27th until the day of the trial it was in the possession of her attorney, Mr. Frame.
Defendant worked at times as a nurse during her marriage to plaintiff and used the earnings to buy food and clothing for the children.
In the fall of 1945 plaintiff gave defendant an unmerciful beating and threw her down the cellar steps. She went to her attorney to see about a divorce. At that time her attorney again advised her to have the deed recorded and this was done. Tlie parties became reconciled and continued to occupy the house as husband and wife until defendant left on November 13, 1946, because plaintiff made threats against her. She again went to see her lawyer and at that time the deed was patched up with scotch tape at places where it had been folded and worn from carrying it about.
Mr. Frame corroborated defendant on many of the important details of her testimony. He said that the deed was freshly typed when he first saw it but that it was worn in places where it had been folded at the time defendant brought it to him for final recordation.
It is true that plaintiff denies the testimony offered by defendant but this merely presented a conflict in the evidence and as above noted we will not interfere with the court’s findings under such circumstances unless the evidence of the defendant is contradictory in itself or so inherently improbable or contrary to physical facts as to be unworthy of belief. We [599]*599fail to see where the evidence of defendant is subject to these infirmities.
The evidence is substantially what this court upheld as sufficient to show delivery in the case of Estey v. Haughian, 112 Mont. 36, 113 Pac. (2d) 325. Plaintiff contends that the evidence of the worn condition of the deed corroborates his testimony that it became worn while he was carrying the deed about. But there is just as much reason to believe that it was worn by reason of defendant carrying it about as it was from plaintiff doing so.
Plaintiff counts strongly on the court’s finding of fact No. 3. It expressly found that on the same day that the deed in question here was executed defendant made and executed a deed conveying the same property to plaintiff.
Defendant denied that she executed such a deed. Plaintiff and the witness Kenck both testified to the contrary.
The fact that the court on this issue rejected the testimony of defendant is no reason for rejecting her entire testimony. If the court was satisfied that her evidence on that point was deliberately false, it would only furnish grounds for distrusting other parts of her testimony, R. C. M. 1947, sec. 93-2001-1, subd. 3, and would not necessarily call for a rejection of all of it. Furthermore the court may well have concluded that defendant was mistaken about the execution of the deed from her to her husband. It would not necessarily affect the result of the case because that deed evidently was never delivered to plaintiff and it was not produced in evidence.
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MR. JUSTICE ANGSTMAN:
Plaintiff brought this action to quiet title to certain described real property situated in Silver Bow county. Defendant Ruby Ellen Sanders is the wife of plaintiff. She filed an answer denying plaintiff’s ownership of the property and by separate defense alleged her ownership thereof.
The property in question was originally purchased from Emma Jane Cobb. The deed was taken in the name of plaintiff. On May 27, 1936, plaintiff made and executed a deed of the property to defendant. The principal question presented in the case is whether or not there was a delivery of this deed by plaintiff to defendant.
The court after trial found the issues in favor of defendant and against plaintiff. Plaintiff’s motion for new trial was denied and he appeals from the judgment. The court specifically found that the deed of May 27, 1936, from plaintiff to defendant Ruby Ellen Sanders was delivered to her and that she has been in possession thereof ever since. The deed was placed of record on September 27, 1945.
The court found that defendant contributed $500 at the time the property was purchased as the purchase price, thereof, and later made other substantial contributions to the purchase price of the property and to its upkeep. The court specifically found that defendant is now and ever since the delivery of the deed has been the lawful owner of the property.
Numerous specifications of error are made by plaintiff but they resolve themselves into one main question, namely, was there a delivery of the deed. Our province on the appeal is to determine whether or not the findings and conclusions of the court are supported by substantial evidence.
It is true that in an equity case this court has the right to make independent findings of fact after a review of all [597]*597of the evidence. That is the effect of R. C. M. 1947, section 93-216, and see: Harrison v. Riddell, 64 Mont. 466, 210 Pac. 460; In re Benson’s Estate, 110 Mont. 25, 98 Pac. (2d) 868; Miller v. Miller, 121 Mont. 55, 190 Pac. (2d) 72; Hart v. Barron, Mont., 204 Pac. (2d) 797.
Bnt if there is in the record substantial evidence supporting the findings of the trial court we will not interfere with those findings. Barcus v. Galbreath, Mont., 207 Pac. (2d) 559; Sanders v. Lucas, 111 Mont. 599, 111 Pac. (2d) 1041; Conway v. Fabian, 108 Mont. 287, 89 Pac. (2d) 1022; Hayes v. Moffatt, 83 Mont. 214, 271 Pac. 433; Reynolds v. Trbovich, Mont., 210 Pac. (2d) 634. And where the evidence is conflicting we follow the conclusion of the trial judge by reason of the fact that he has the advantage denied to us of observing the witnesses and noting their conduct and demeanor on the stand. Welch v. Thomas, 102 Mont. 591, 61 Pac. (2d) 404; Lewis v. Bowman, 113 Mont. 68, 121 Pac. (2d) 162; Sanger v. Huguenel, 65 Mont. 236, 211 Pac. 349; Opp v. Boggs, Mont., 219 Pac. (2d) 647. That is what Chief Justice Brantly had reference to in the early case of Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6, 8, where in pointing out the duty and power of this court in an equity case, in reaching its own conclusion he said this court must, “so far as it may” exercise “a due regard for the findings of the district court, based, as they are, upon the testimony of witnesses delivered ore terms in the presence of the court”.
The evidence given by defendant briefly summarized is to this effect: That the deed from the Cobbs was to be made to both plaintiff and defendant; she supposed that had been done not having read the deed. When her attorney examined the abstract which was after she had the deed from plaintiff, she learned that the deed from the Cobbs was to plaintiff alone. She said that on May 27 or 28, 1936, plaintiff, prior to taking a long trip by airplane, handed the deed in question to her saying: “Here, Ruby, I am going to give you what I promised you; I always promised I would take care of you. Take this and keep care of it. ” In a few days she took it to her attorney, Mr. Frame, [598]*598and he advised her to record it. This she decided to do and placed it in her purse and laid it aside from time to time thinking she would record it when she would be up town. At the time the deed was given to her it was a fresh, clean deed. She carried the deed “back and forth” intending to recoil it when she was up town but never had sufficient time to do so. She had the deed in her possession from the 27th or 28th of May 1936 until it was recorded by her attorney at her direction on the 27th day of September 1945. From September 27th until the day of the trial it was in the possession of her attorney, Mr. Frame.
Defendant worked at times as a nurse during her marriage to plaintiff and used the earnings to buy food and clothing for the children.
In the fall of 1945 plaintiff gave defendant an unmerciful beating and threw her down the cellar steps. She went to her attorney to see about a divorce. At that time her attorney again advised her to have the deed recorded and this was done. Tlie parties became reconciled and continued to occupy the house as husband and wife until defendant left on November 13, 1946, because plaintiff made threats against her. She again went to see her lawyer and at that time the deed was patched up with scotch tape at places where it had been folded and worn from carrying it about.
Mr. Frame corroborated defendant on many of the important details of her testimony. He said that the deed was freshly typed when he first saw it but that it was worn in places where it had been folded at the time defendant brought it to him for final recordation.
It is true that plaintiff denies the testimony offered by defendant but this merely presented a conflict in the evidence and as above noted we will not interfere with the court’s findings under such circumstances unless the evidence of the defendant is contradictory in itself or so inherently improbable or contrary to physical facts as to be unworthy of belief. We [599]*599fail to see where the evidence of defendant is subject to these infirmities.
The evidence is substantially what this court upheld as sufficient to show delivery in the case of Estey v. Haughian, 112 Mont. 36, 113 Pac. (2d) 325. Plaintiff contends that the evidence of the worn condition of the deed corroborates his testimony that it became worn while he was carrying the deed about. But there is just as much reason to believe that it was worn by reason of defendant carrying it about as it was from plaintiff doing so.
Plaintiff counts strongly on the court’s finding of fact No. 3. It expressly found that on the same day that the deed in question here was executed defendant made and executed a deed conveying the same property to plaintiff.
Defendant denied that she executed such a deed. Plaintiff and the witness Kenck both testified to the contrary.
The fact that the court on this issue rejected the testimony of defendant is no reason for rejecting her entire testimony. If the court was satisfied that her evidence on that point was deliberately false, it would only furnish grounds for distrusting other parts of her testimony, R. C. M. 1947, sec. 93-2001-1, subd. 3, and would not necessarily call for a rejection of all of it. Furthermore the court may well have concluded that defendant was mistaken about the execution of the deed from her to her husband. It would not necessarily affect the result of the case because that deed evidently was never delivered to plaintiff and it was not produced in evidence. Even though such a deed was made and even if it were intended at the time made that neither deed was to be effective until death as plaintiff testified, still plaintiff had the right to change his mind thereafter and make delivery of the deed and cause it to be operative whenever he saw fit to do so.
Plaintiff also argues that the physical facts refute the testimony of defendant because according to her evidence plaintiff never saw the deed from the time it was delivered to her in May 1936 until it was produced in court and yet he testified [600]*600concerning its creases and worn condition before it was produced in court.
Tbe record does not sustain plaintiff in this particular. When plaintiff was on the witness stand he was asked to and did examine the deed. It was after he had thus examined it that he gave testimony to the. effect that its worn condition was caused by his carrying it around in his pocket.
Plaintiff contends that defendant’s evidence is self-destructive because she testified that when the deed was given to her by plaintiff she thought a grant deed could not be recorded until after death. That was a collateral matter and has no determinative effect upon the case. Within two or three days after the deed was handed to her she learned from Mr. Frame that she was mistaken about the right to record the deed.
Plaintiff points to other circumstances as indicative of the fact that his version of the facts rather than defendant’s should be accepted by this court. We have given consideration to all of these circumstances but find in none of them any justification for interfering with the trial court’s findings and conclusions.
What was said .by this court in Johnson v. Blyberg, 82 Mont. 336, 266 Pac. 1103, is applicable. This court in that case said: “Any discussion of the evidence would be utterly useless; a waste of labor and time. A careful study of the transcript, aided by the briefs of counsel, leads to the conclusion that, looking at the ease from the view most favorable to plaintiff, nothing more than a conflict of evidence is presented.”
The only other question presented is whether the court erred in overruling and denying plaintiff’s motion for a new trial. The motion questions the sufficiency of the evidence — a point we have already considered. It also was based upon alleged newly discovered evidence. It is sufficient to say of the newly discovered evidence that it is merely cumulative or impeaching in character. It corroborates the testimony of plaintiff and contradicts that offered by defendant. This court has frequently held that a motion for new trial is properly denied when based [601]*601merely on cumulative testimony. In re Colbert’s Estate, 31 Mont. 477, 78 Pac. 971, 80 Pac. 248, 107 Am. St. Rep. 451; State v. Matkins, 45 Mont. 58, 121 Pac. 881; State v. G-ies, 77 Mont. 62, 249 Pac. 523; State v. Collett, 118 Mont. 473, 167 Pac. (2d) 584.
Finding no reversible error in the record, the judgment appealed from is affirmed.
MR. JUSTICE METCALF, concurs.
MR. JUSTICE FREEBOURN, not participating.