
    [No. 16796.
    Department One.
    May 13, 1922.]
    M. M. Kelliher et al., Respondents, v. Mrs. G. H. Clark, Appellant. 
      
    
    Lost Instruments—Evidence—Sufficiency. The execution and delivery of a deed that was lost or destroyed and never recorded is not proven with a sufficient degree of certainty where the question is largely one of the credibility of witnesses.
    Appeal from a judgment of the superior court for Spokane county, Webster, J., entered December 20, 1920, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.
    Affirmed.
    
      Cordiner & Cordiner, for appellant.
    
      Fred B. Morrill and Oscar Cain, for respondents.
    
      
      Reported in 206 Pac. 924.
    
   Parker, C. J.

—The plaintiffs, Kelliher and wife, commenced this action in the superior court for Spokane county, seeking a decree quieting title in themselves to certain land in that county—which land they are in possession of—as against the claims of the defendant Mrs. Clark and others. All of the other defendants having disclaimed any interest in the land, the controversy became one solely between the Kellihers and Mrs. Clark. Trial upon the merits resulted in a decree in favor of the Kellihers as prayed for; from which Mrs. Clark has appealed to this court.

It is plain from the evidence that the Kellihers have the superior title to the land, unless the alleged deed under which Mrs. Clark claims title was executed and delivered to her by the former owner of the land; in which event, we assume for argument’s sake, she would have the superior title. This alleged deed is claimed by Mrs. Clark to have been executed about five years before the trial of this action. She claims it was lost or destroyed before the trial of this action. It was never recorded in the county auditor’s office; so she sought to establish its due execution and delivery by oral testimony. Assuming, for argument’s sake, that the execution of this deed may be so proven under the issues as made in this case — which counsel for the Kellihers insist cannot be done — we have only the question of fact as to its execution and delivery. A careful review of all of the evidence convinces us that Mrs. Clark has failed to prove the execution and delivery of the deed, under which she claims title to the land, with that degree of certainty required to sustain the claim of title here made by her. It is largely a question of the credibility of witnesses. The trial court, it seems to us, was fully warranted in reaching the conclusion it did. We think the case does not call for further discussion.

The judgment is affirmed.

Fullerton, Mitchell, Bridges, and Tolman, JJ., concur.  