
    [No. 1854.
    Decided November 27, 1895.]
    Mary Cleveland, Respondent, v. Eli S. Glover et ux., Appellants.
    
    APPEAL — EQUITABLE ACTION — REVIEW OP FINDINGS OP FACT.
    The findings of fact made in an equitable action, which have “been duly excepted to, must, on appeal, be examined in the light of the evidence.
    Appeal from Superior Court, Pierce County.—Hon. John C. Stallcue, Judge.
    Reversed.
    
      Snell & Bedford, for appellants.
    
      Parsons, Corell & Parsons, and Wh,alley, Strahan & Pipes, for respondent.
   The opinion of the court was delivered by

Hoyt, C. J.

The controversy in this action involved the title to certain tracts of land situated in the city of Tacoma. Many important propositions have been presented in the briefs of counsel and elaborately argued. These were founded upon questions relating to the place of residence of the plaintiff and her husband at the time he acquired the paper title to the lands and to the legal results flowing from such residence. The conclusion to which we have come as to the facts relating ■to the acquisition of the property will make it unnecessary for us to consider any of these questions. The plaintiff founds her claim to the lands upon the alleged fact that they were purchased by her husband after their marriage with his own money, and upon such purchase became the property of the community composed of her husband and herself. The claim of the appellants is founded upon the alleged fact that at the time the lands wer.e purchased by the husband of the plaintiff he was acting as the agent of the appellant, Eli S. Glover; that the lands were paid for with his money, and the paper title thereto wrongfully taken in the name of the agent instead of in that of the principal. Various other collateral questions of fact were presented by the pleadings and proofs, but the entire merits of the controversy must depend upon which of the claims above referred to is shown by the proofs to have been warranted. It is therefore unnecessary for us to consider any other question than the one of fact presented by these adverse claims.

The trial court found the facts to be as claimed by the plaintiff, and the question which we are called upon to decide is as to the sufficiency of the proofs to sustain this finding. The suit was in equity, and the findings of fact having been duly excepted to, must be here examined in the light of the evidence. Roberts v. Washington National Bank, 11 Wash. 550 (40 Pac. 225).

When a pure question of fact is to be determined by an appellate court there is little use of any discussion of the reasons upon which its decision is founded. However elaborate might be the discussion of such a question, it would- have little value to the legal profession or to the general public, for the reason that the facts of each case must be determined in the light, of all the circumstances disclosed by the proofs. And such circumstances are never all the same in any two-cases. Hence, we shall not attempt at any great length to give reasons for our conclusion upon the question of fact above suggested.

The claim of the plaintiff was supported only by the testimony, of her husband and the deed in which the title was conveyed to him;-the other by the direct testimony of the appellant Eli S. Glover and hy proof of admissions, oral and written, of the husband of the plaintiff. The support to which the plaintiff's claim was entitled by reason of the paper title having been taken in the name of her husband was fully overcome by the fact that hy the action of her husband as well as herself such paper title had been, before the commencement of the action, fully vested in the appellants. The question of fact must largely depend upon the credit to be given respectively to the testimony of the husband of the plaintiff and that of the appellant, Eli S. Glover. There is nothing so inherently improbable in the version of either of these as to the transaction that their testimony would be much affected thereby, and if there was .nothing in the surrounding circumstances, or in admissions or statements made by them, going to affect the credibility of their testimony, the evidence of one would practically balance that of the other, and there would be no such preponderance of evidence against the findings of the trial court as would authorize us to interfere. But when witnesses thus contradict each other, it is the duty of the court to investigate all the collateral facts which have any bearing upon the truth of either story. Such investigation compels us to come to a different conclusion from that arrived at by the trial court. The only circumstance which had any tendency to throw discredit upon the testimony-of said appellant grew out of the alleged fact that he had on several occasions assisted the husband of the plaintiff in concealing his whereabouts from his wife. We are not satisfied from the proof that he took any affirmative action in this direction, but, even if he did, that fact alone would not much affect his credit as a witness. It clearly appeared from the proofs that at these times the husband was anxious to conceal his whereabouts from his wife, that he relied upon the appellant as a friend, and made known to him his desire in that regard. It further appeared that he stated to him the reasons why he did not want his wife to find him. Under these circumstances it was but natural that the appellant should be willing to comply with the request of his friend to do nothing to aid the wife in ascertaining his whereabouts.

It is true that the plaintiff claims that the reason why her husband desired to have his whereabouts concealed from her grew out of a state of mind induced by the influence of the appellants, but, after a careful examination of the entire record, we are unable to find a single fact to have been established which furnished any foundation for this claim. The testimony of the appellant, Eli S. Glover, was therefore undisputed by anything in the record excepting the testimony of the husband of the plaintiff. That of the husband of plaintiff was discredited by numerous circumstances fully established by the proofs. There were the recitals in the instrument executed by him in Chicago. These were entirely inconsistent with the testimony given by him upon the trial, and the only explanation which he attempted to give for having executed an instrument with such recitals was the alleged fact that he relied entirely upon the appellant, Eli S. Glover, and was willing to do anything that he asked, but this explanation was entirely inadequate in view of the fact that, if his story, as detailed in his testimony was true, there was absolutely no reason why the thought of the execution of a paper with such recitals should, have occurred either to said appellant or to him. Hence these recitals must be given force in determining the weight of his testimony. The further fact appeared that there was no adequate explanation of the execution of the deed to appellant Sarah P. Glover, years after the execution of the instrument containing the recitals above referred to. His testimony was.so affected by recitals in instruments solemnly executed by him that the only theory upon which it could be sustained would be that of his having been so fully under the control of the appellant Eli S. Glover, that he was not responsible for acts done at his request or in his presence. It was probably this view of the relation of these parties that induced the finding made by the superior court, and if there was any evidence in the record which had any legitimate tendency to show such to have been their relations, we might come to the same conclusion, but we have been unable to discover anything which tended to show that said appellant had any such control over the husband of the plaintiff that he was not at all .times fully responsible for what he did. Besides the admissions in these written instruments, numerous oral ones of a like, tendency were testified to by both of the appellants, and their testimony was in many respects confirmed by that of disinterested witnesses. All of these circumstances tended. strongly to contradict the testimony of the husband of the plaintiff and just as strongly to confirm that of appellants. In this light .the testimony of the husband of the plaintiff must be held to have been overcome by that of appellants.

In our opinion the equitable title to this property was, from the time of its purchase by the husband of the plaintiff until it was conveyed to the appellant or his wife, in the appellants, and the plaintiff never had any interest therein.

The judgment will be reversed and the cause remanded with instructions to dismiss the action.

Scott, Anders and Dunbar, JJ., concur.

Gordon, J.

(dissenting).- I agree with the majority that the question presented by the record is a simple question of fact. I also accept the statement in the opinion of the majority that “ the question of fact must largely depend upon the credit to be given respectively to the testimony of the husband of the plaintiff and that of the appellant.” Such being the character of the question and the rule upon which its determination must depend, I am unwilling to disturb the finding of the lower court in this case. That court had many circumstances of advantage to enable it to determine what witnesses were entitled to credit, and to give credit accordingly. The appearance of a witness while testifying, his demeanor, candor and intelligence, the tone of .his voice, the look or gesture, are all circumstances which assist the experienced trial judge in reaching a conclusion, and in themselves constitute evidence of the most convincing character, and yet it is not possible to incorporate it in the record upon appeal.

For this and kindred reasons, the rule has long been settled elsewhere that an appellate tribunal will not disturb the findings of a lower court where there is a substantial conflict in the evidence and where it does not clearly appear that injustice has been done. Nor do I think that the statute of this state governing appeals of this character requires the adoption of a different rule. Like any other statute it should receive a reasonable construction and be interpreted in the light of the general rule prevailing elsewhere. I cannot believe that the legislature intended to put,the burden upon this court of determining from the record alone which of two witnesses, whose testimony is in direct conflict, told the truth. That is the province of the lower court, which sees the witnesses.

With deference to my brethren, I am constrained to dissent from their conclusion, and think that the decree appealed from should be affirmed.  