
    CROKER v. SHURLEY et al.
    No. 10658
    Opinion Filed May 16, 1922.
    (Syllabus.)
    1. Appeal and Error — Review of Equity Case — Sufficiency of Evidence.
    In an equitable proceeding the judgment of the trial court will not be set aside unless it is against the clear weight of the-evidence.
    
      
      2. Same — Action for Specific Performance of Contract to Convey LiantL
    Record examined, and field, tfiat tfie judgment of tfie trial court is not clearly against tfie weigfit of the evidence.
    Error from District Court, Carter County; W. E. Freeman, Judge.
    Action by J. L. Croker against N. A. Sfiurley and others. Judgment for defendants, and plaintiff brings error.
    Affirmed.
    Alexander Gullett, vY. D. French, and Sig-ler & Jackson, for plaintiff in error.
    Champion & George, for defendants in error.
   NICHOLSON, J.

Tfie plaintiff in error brought this action against tfie defendants in error, seeking tfie specific performance ■of a verbal contract for tfie sale of land alleged to have been entered into between the plaintiff and A. F. Sfiurley.

It is alleged in tfie petition, in substance, tfiat on or about tfie 1st day of November, 1911, tfie plaintiff and A. F. Sfiurley entered into an agreement to purchase 140 acres of land situated in Carter county, then being advertised for sale at a guardian’s sale; that on November 24, 1911, said A. F. Sfiurley purchased said land for tfie sum of $700 and that said land was conveyed to him; tfiat thereafter the plaintiff and A. F. Sfiurley took possession of said land, and on or about the 15th day of December, 1911, they made an agreement partitioning said land; tfiat by the terms of said agreement said A. F. Sfiurley was to retain and hold tfie north SO acres of said land at tfie agreed price of $400, and was to convey to the plaintiff tfie south 60 acres (being tfie land in controversy-) for a consideration of tfie sum of $300, and that plaintiff paid said Sfiurley said sum; tfiat after said agreed partition of said land each party took possession of his portion thereof, and Shurley and his wife executed a mortgage to one G. M. Dodge on the 80 acres so set aside to him, and tfiat said plaintiff took possession and exercised ownership over the 60 acres set apart to him, and paid tfie taxes thereon; that said A. F. Sfiurley departed this life on tfie 6tfi day of February, 1916, leaving surviving him the defendant N. A. 'Sfiurley, his widow, and the other defendants, his children; tfiat the defendant N. A. Shurley is tfie daughter of tfie plaintiff. Tfie prayer of tfie petition is that tfie court decree the plaintiff to be (fie sole owner of tfie 60 acres of land involved and entitled to a conveyance thereof, and requiring tfie defendant N. A. Shur-ley to convey said land to him by warranty deed, and to execute a proper guardian's deed as guardian for the minor defendants, and tfiat if said conveyance be not made, that tfie court • order tfie -sfieriffc of Carter county to execute to plaintiff a proper deed conveying said land to him.

To this petition an answer consisting of a general denial was filed. Tfie case was tried to tfie court without tfie intervention of a jury, and tfie court found generally for the defendants, and rendered judgment in their favor, to review which this proceeding in error was brought.

Tfie plaintiff in error relies upon but one assignment of error, viz., tfiat tfie court erred in rendering a judgment for tfie defendants and in refusing to render a judgment for tfie plaintiff. This assignment necessarily involves the question of whether or not 'the judgment of tfie trial court is against tfie clear weigfit of tfie evidence.

To sustain tfie allegations of his petition, tfie plaintiff used as a witness one J. M. Dawson, his son-in-law, who testified tfiat in tfie fall of 1911, tfie plaintiff and A. F. Sfiurley fiad a conversation in the presence ■of tfie witness wherein it was understood that tfie plaintiff and Shurley were to bid $5 per acre for the 140 acres of land then being advertised for sale at a guardian’s sale, and if they bought tfie land Sfiurley was to pay for it and let tfie plait tiff nave a portion of it at the same price paid by Sfiurley, and tfiat Croker was to let Sfiurley have some cattle in payment for his share of tfie land; that in tfie following spring 'Sfiurley obtained from Croker three cows •and calves at the agreed prices of $35 each, one cow at tfie agreed price of $25, and one heifer at tfie agreed price of $12.50; that after Sfiurley had removed the cattle, one of tfie cows returned to tfie home of tfie witness, and tfie plaintiff afterwards sold her. The witness further testified that tfie plaintiff purchased 24 spools of wire with which to fence tfie land, and that Shurley after-wards told him tfiat he bought tfie wire at Coleman because fie could get" it cheaper; tfiat both Croker and Sfiurley told him tfiat each was to have half the wire to fence the place; tfiat fie thought tfie wire cost $2 per spool; tfiat tfie plaintiff paid $5 for repairing Sfiurley’s wagon. He also identified as Sfiurley’s, tfie signature to the indorsement on two checks drawn by -the plaintiff and payable to tfie order of A. F. Shurley, one of tfie checks being for the sum of $50. and the other for the sum of $25. He further stated that fioifi Croker and Shurley fold him tfiat Shurley obtained 26 bushels of cotton seed from Croker, and that Croker let Shurley have 125 bushels of corn of tfie value of 50 cents ser bushel. On cross-examination he stated that he did not know whether Shurley paid Croker for the cotton seed, corn, wire, etc., or not.

Robert Hardy Wood, a witness for the plaintiff, testified that he was a son-in-law of the plaintiff; that he was acquainted with the land in controversy; that A. F. Shurley built a house and resided upon the north 80 acres of said land; that Shurley indicated to him the location of the line between the north 80 acres and the south 60 acres of said land; that the land was all inclosed in one inclosure. He also testified that Shurley obtained the cattle, cotton seed, wire, and corn mentioned by Dawson in his testimony, but, like Dawson, did not know whether or not Shurley paid the plaintiff therefor.

The plaintiff introduced evidence showing that A. F. Shurley and wife had executed a mortgage’ upon the north 80 acres of said land, and that plaintiff paid the taxes upon the south 60 acres of said land for several years, but he had not paid any taxes for two years prior to the institution of this action. He also introduced in evidence the petition of N. A. Shurley for the appointment of herself as guardian for the minor defendants filed in the county court of Johnston county, wherein it was recited that J. L. Croker was the owner of 6/14ths of 140 acres of land in section 15, township 5 south, range 3 east.

The plaintiff was permitted to tes', ify as to certain facts pertaining to transactions with A. F. 'Shurley regarding the land in controversy. Much of his testimony was inadmissible, was admitted over the objection of the defendants, .and, no doubt, his testimony was disregarded by the court.

To refute the evidence introduced by the plaintiff, the defendant Mrs. N. A. Shurley testified that she was the widow of A. E. Shurley, deceased, the mother of the other defendants and the daughter of the plaintiff; that A. F. Shurley purchased the land in controversy in the year 1911, and paid therefor the sum of $700; that her husband and his family took possession of said land shortly after said purchase and have remained in possession thereof at all times since; that the plaintiff had never at any time been in possession of said land; that the land was inclosed with a wire fence and that her husband purchased the wire and posts and erected the fence. She further testified that her father, the plaintiff, insisted upon her being appointed guardian of her children and that he accompanied her to the office of I. R. Mason, an attorney, and did all the talking with Mr. Mason; that she did not instruct Mr. Mason to recite in the petition for the appointment of herself as guardian the statement that the plaintiff owned an undivided 6/14ths interest in the 140 acres of land; that she signed the petition without reading it, and did not know that it contained such statement. She further testified that her husband paid the plaintiff $140 in money for the cattle purchased ; that the corn purchased by her husband was paid for in work by her husband and his family; that she gave her husband the money with which to pay for the cattle and that he paid for them when he and their son obtained them. She testified rhat there was an agreement between her husband and her father whereby her father was' to pay $300 for the south 60 acres of said land; that the consideration was to be paid in cash, and the reason this consideration was to be paid in cash was that her husband wanted to use the money to improve ■the other 80 acres. She further testified that the plaintiff did not pay any amount of the purchase price of the land. She further testified that she was present and saw her husband pay her father for the wire used in fencing the land, and that her husband also paid for the posts used.

Other witnesses testified on behalf of each of the parties to the action, but it is unnecessary to ■ comment upon their testimony. After a thorough examination of the record, we are unable to say that the judgment is against the clear weight of the evidence. In an equitable proceeding, the judgment of the trial court will not be set aside unless it is clearly against the weight of the evidence. Robinson et al. v. Potterff, 78 Okla. 202, 189 Pac. 744; Lamb v. Alexander, 83 Okla. 292. 201 Pac. 519.

While it conclusively appears that there was an oral contract between A. F. ’Shurley and the plaintiff whereby Shurley agreed to sell and convey the land in controversy to the plaintiff, there is a sharp conflict in the evidence as to the payment of the purchase price, and the plaintiff has not sustained the burden cast upon him of clearly establishing such payment.

The judgment of the trial court, not being clearly against the weight of the evidence, is affirmed.

PITCHFORD, V. O. J., and JOHNSON, McNEILL, MILLER, and KENNAMER, JJ„ concur.  