
    [No. 12317.
    Department One.
    April 29, 1915.]
    Thomas Neill, as Administrator, Appellant, v. George W. Griner et al., Respondents.
      
    
    Lost Instruments — Evidence—Sufficiency. The proof to establish a lost written instrument must be clear and positive.
    Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered January 12, 1914, dismissing an action for equitable relief, tried to the court.
    Affirmed.
    
      Neill Sf Burgwnder, for appellant.
    
      J. T. Brown, for respondents.
    
      
      Reported in 147 Pac. 1137.
    
   Parker, J.

This is a suit in equity to establish the lien of an alleged lost, unrecorded mortgage upon land of the defendants in Whitman county. Trial in the superior court resulted in denial of the relief prayed for, and judgment-of dismissal accordingly. Prom this disposition of the cause,/ the plaintiff has appealed.

No question is presented here which we regard as worthy of serious consideration, other than questions of fact as to the existence of the alleged mortgage and its terms and conditions. Manifestly it was the want of sufficient evidence upon these questions to warrant granting the relief prayed for that induced the trial court to render judgment adverse to the plaintiff. We have carefully read all of the evidence in the record, doing so from the statement of facts rather than from the abstracts. We cannot say that the conclusion of the learned trial judge is not in accord with the evidence; especially in view of the fact that it was practically all oral, involving, more or less, the credibility of witnesses, and the rule requiring clear and positive proof to call for granting relief depending upon the establishment of a lost written instrument. Scurry v. Seattle, 56 Wash. 1, 104 Pac. 1129, 134 Am. St. 1092. We think further discussion of the cause unnecessary.

The judgment denying the relief prayed for is affirmed.

Morris, C. J., Mount, Holcomb, and Chadwick, JJ., concur.  