Shannon Ex Rel. Shannon v. Petherbridge Ex Rel. Estate of Shannon

1906 OK 107, 87 P. 668, 17 Okla. 507, 1906 Okla. LEXIS 61

• Court: Supreme Court of Oklahoma
• Decided: September 7, 1906
• Status: Published

Opinion

Opinion of the court by

Hainer, J.:

The record presents but one question for consideration, and that is, whether the grantor in the deed executed on August 5, 1893, bad sufficient mental capacity at tbat time to make the conveyance.

The record discloses that a large volume of evidence was introduced on both sides. The referee, after hearing all the evidence, found every material and controverted fact against the plaintiff, and the trial court' confirmed and approved the findings of the referee, and entered judgment accordingly. In our opinion, while the evidence appears to have been conflicting, the referee was fully warranted in finding that the grantor had sufficient mental capacity to execute the deed which is the subject of this controversy, and that the defendant Howery was a bona fide purchaser for value. And there being sufficient evidence to sustain and uphold the findings of the referee, the law is well settled by this court, as well as the courts of other jurisdictions having similar statutes, that such findings will not be disturbed by the appellate court.

In Erisman v. Kerwin, 8 Okla. 92, this court held that:

aTlie findings of the referee must be regarded by the court as having the same force and weight .as the verdict of a jurjr, and should not be disturbed, unless clearly against the weight of the evidence.”

In Harper v. Hendricks, 49 Kans. 718, 31 Pac. 734; the supreme court of Kansas held that:

"Where a cause is referred to a referee, with the consent of all the parties, to hear the same, and to make his report o'f the facts and the law, and such report is afterwards confirmed by the district court, the judgment will not be set aside as against the evidence, although that is greatly conflicting, if there is sufficient to sustain the findings of fact upon which the judgment is rendered.” . ■■

And in Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; it was held that:

“The credibility of the witnesses and the probative force of the facts as to ’ testamentary incapacity were for the determination of the trial court, and, it appearing that there is legal evidence to support the findings, these matters are not open for further consideration.”

In our opinion, these cases are decisive of the question under consideration. It follows that the judgment of the court below must be affirmed.

Burwell, J., who presided in the court-below, not sitting; all the other Justices concurring.