On the 18th day of February, 1908, the opinion of this court was rendered in the case of John E. Brooks et al. v. James A.Garner. A petition for rehearing was filed March 7th, 1908, and while the same was pending the death of one of the plaintiffs in error, John E. Brooks, was suggested to the court, and leave granted on motion, to revive the cause in the name of the heirs and legal representatives of said deceased. This has now been done, and the case is revived, in the names of Nannie E. Brooks, Moses E. Brooks, and James A. Johnson, who are heirs at law and legal representatives of the said deceased. Since the filing of the petition for rehearing, the case has again had the careful consideration of the court.
It is urged by counsel in their petition that the court disregarded and set aside the findings of the referee in rendering its opinion herein, and our attention is especially called to the finding of the referee, wherein he states:
"Whether Mrs. Scarborough purchased the property for value, and without any actual notice of the claim of Garner, is not shown by the testimony, and I have not considered the question whether it devolved upon her or the defendants to show that she was such purchaser."
The referee in his finding then continues his statement as follows:
"If the appeals pending in the land department did not constitute notice, the question would then arise whether Mrs. Scarborough was an innocent purchaser and if so, whether she could convey to Brooks, who had notice, by the pendency of this suit, of all her rights as an innocent purchaser."
We found in the decision that the appeals pending in the department did not constitute notice, and in our judgment this conclusion *Page 259 is unassailable. The question of whether or not Mrs. Scarborough was an innocent purchaser for value was squarely presented by the pleadings, the plaintiff denying, and the defendant affirming. By the referee's findings, as is seen, the testimony does not show whether Mrs. Scarborough was such innocent purchaser or not, and he did not consider the proposition of whether or not it devolved upon her or the defendants to show that she was such a purchaser. On the reconsideration of this matter, we have investigated this question, and in our judgment the great weight of judicial expression on this proposition placed this burden upon her. In the decision tendered, while we did not find that Mrs. Scarborough had actual notice of the claim of Garner, we did find that, in view of the pleadings, issues, and evidence, it was her duty to have testified, or to have her claim subjected to the unfavorable presumption arising by her failure, and that the burden was upon her to clear up for the court those things which she was in a pre-eminent position to do, and that this burden was not discharged by her. Weber v. Rothchild, 15 Or. 385. This rule is applicable in its full scope in cases of this character where the law places the burden of proof upon the party who holds title to real property which is assailed on the ground of fraud. Neal v. Crawford, 144 U.S. 585, 36 L.Ed. 552;Cincinnati Tobacco Warehouse Co. v. Mathews, 74 S.W. (Ky.) 242;Worthy v. Caddell, 76 N.C. 82; Morgan v. Bostic, 132 N.C. 743;Gordon, Rankin Co. v. Tweedy, 71 Ala. 202; Russell v. Davis,admin., 133 Ala. 647; Martin v. Berry, Demoville Co.,116 Ala. 233; Miller v Fraley, 21 Ark. 22; American Net Twine Co.v. Mayo, 97 Va. 182; Schaible v. Ardner, 98 Mich. 70; Latson v.Reed et al., 45 Mich. 27; Sillyman v. King, 36 Iowa, 207;Throckmorton v. Rider, 42 Iowa, 84; Davis v. Nolan, 49 Iowa, 683; Butler v. Thompson, 45 W. Va. 660; Knight v. G. C.Capito, 23 W. Va. 639; Lovell v. Payne, 30 La. Ann. Rep. 511;Clark v. Depew, 25 Penn. St. Rep. 509; Lloyd v. Lynch, 28 Penn. St. Rep. 419, 70 Am. Dec. 137; Richards v. Vaccaro,67 Miss. 516, 19 Am. St. Rep. 322; Weber v. Rothchild, 15 Or. 385, 3 Am. St. Rep. 162. *Page 260
In the case of Weber v. Rothchild, supra, the Oregon Supreme Court, in the syllabus, speaks as follows:
"Where a deed is attacked for fraud, the grantee, in order prove himself a bona fide purchaser, must show that he paid a valuable consideration; that at the time of payment he had no notice of an outstanding equity, or of the fraudulent intent of the grantor, and that he acted in good faith. The same elements which were necessary to constitute a good plea in bar to such cases under the former equity practice are necessary to make a good answer under the Oregon Code. When a deed is attacked for fraud, and the grantee pleads that he is a bona fide purchaser for value, such plea is an affirmative defense, casting the burden of proof on him, and the plaintiff need only show the fraudulent intent and purpose of the grantor. When a fact is peculiarly within the knowledge of a party, he must produce the necessary evidence to prove it."
In the case from Mississippi, Richards v. Vaccaro, supra, the Supreme Court of that state on this proposition speaks as follows:
"If a transaction is shown to have been made with a fraudulent purpose on the part of the grantor, this makes aprima facie case in favor of those who are entitled to attack such deed or transfer, which must be met by counter-proof on the part of the grantee, or those claiming under him, tending to show that the grantee was a purchaser for value, and without notice of the grantor's fraud. While fraud is never to be presumed, yet if a transaction is shown to be fraudulent on the part of one of the actors, then it is not incumbent on the party attacking the transaction to prove the fraud of the other actor claiming under it."
The case of Letson v. Reed et al., supra, from the Michigan Supreme Court, concurred in by the eminent jurist, Justice Cooley, in reference to the question of burden of proof in cases of this character, declares the rule to be:
"Purchasers of land which has been fraudulently transferred to their grantor must establish the good faith of their purchase, and it cannot be presumed."
In order for the plaintiff in error to have prevailed in this cause it was necessary that Mrs. Scarborough's title be shown to have been clear and free from fraud, purchased by her, in good *Page 261 faith, without notice, and for a valuable consideration. This burden was placed upon her by the facts in the case and the pleadings, and the referee, by his finding, affirmatively declares that the same was not shown by the testimony.
Paragraph 4480 of Wilson's Rev. Ann. St. of Okla., 1903, provides:
"When the referee is to report the facts, the report has the effect of a special verdict."
Clementson in his Work on Special Verdicts, in chapters 12 and 13, pages 232, 233, and 265, states the rule to be that (p. 232):
"Silence in regard to a material fact raises the presumption that the fact has not been proved and does not exist, and the omission will therefore be regarded as equivalent to an express finding against the party having the burden of proof on such issue, which may entitle the opposite party to judgment."
To the same effect is the holding in the case ofNoblesville Gas and Improvement Company v. Loehr, 124 Ind. 79, wherein the Supreme Court of that state, in passing upon a proposition similar to this, said:
"A special verdict must contain a finding of the facts, and if any fact essential to support the judgment is not found the judgment must fall. Nothing can be supplied by intendment. A failure to find a fact in favor of a party, upon whom the burden as to such fact rests, is equivalent to finding such fact against him. Housworth v. Bloomhuff, 54 Ind. 487; Buchananv. Milligan, 108 Ind. 433; Town of Albion v. Hetrick,90 Ind. 545; Dixon v. Duke, 85 Ind. 434; Vinton v. Baldwin,95 Ind. 433."
The opinion rendered decided nothing that was not litigated in the suit by the parties. The referee made the evidence taken part of his report, and, while it was read and commented on, there was no fact material to support the conclusion of the court not found specifically or generally by the referee in his findings, and the fact that we came to the some conclusion to which the referee and the trial court arrived, although for different reasons, or from a recognition of other or different rules of law, is nothing of *Page 262 which the parties may complain, provided there was no departure from the theory on which the cause was tried.
Numerous tribunals have had occasion to pass upon the rights of the parties in this case. The real question of merit in the case, and the one which should control all decisions, is, who was the first settler on the lot. Two tribunals of the land department, with the facts before them, although without jurisdiction, passed upon it, the referee and the district court passed upon it, as did the Supreme Court of the territory, and on rehearing this court has considered it and passed on it, and each and all have held that Garner was the first settler on the lot and entitled to prevail.
Therefore, finding no error in the opinion heretofore rendered and for the additional reasons stated herein, the petition for a rehearing is denied, and the case is remanded to the district court of Oklahoma county, with instructions to require the heirs and legal representatives of John E. Brooks, deceased, within thirty days of the receipt by the clerk of the said court of the mandate herein, to execute to the plaintiff, James A. Garner, a good and sufficient conveyance to lot No. 26, in block No. 5, in the city of Oklahoma City, Oklahoma, and, on their failure so to do within said time, that the said court proceed as provided in section 391 of the Code of Civil Procedure of Wilson's Rev. Ann. St. of Oklahoma, 1903.
All the Justices concur. *Page 263