Alexander Connelley, as plaintiff, brought this suit against Grace Gaffaney, Charles T. Connelly, Theresa Connelly, and Edgar Connelly, four of his children by a second marriage, and others, as defendants, to cancel certain deeds of conveyance and to quiet the title to the lands therein conveyed in himself.
The evidence discloses that he was a Sac and Fox Indian, about 80 years of age. He had been selected as a member of the business committee of the tribe and had served quite a long time as such; he was one of the three men who had charge of the business affairs of that tribe. He had received an allotment of 160 acres of land as his portion of the lands of the tribe. He married and had a daughter by that marriage, which daughter had received an allotment. His first wife died and he married again and there were four children by the second marriage, none of whom received an allotment for the reason that the land had all been allotted prior to their birth. After the death of the second wife, he sold her allotment, paid all the expenses of her illness, and purchased 70 acres of land with the balance of the money. He had mortgaged all of his land for $900. He owned a small house in the village of the Sac and Fox Agency, in which he and his four children by the second wife lived. Two of the children were girls and two were boys. The boys worked away from home and at times worked on the land, and the girls stayed at home and took care of it and their father. The daughter by the first wife lived in Drumright.
The plaintiff's third marriage was to a young white woman 23 years of age, and the record discloses that she had been guilty of selling whisky. On marriage to her, plaintiff left his home and the home of his children and went to live with his third wife in the house she had rented about a quarter of a mile north of the home of the children. The children objected to his marriage, and shortly thereafter two of them asked him to get in a car with them and they took him to Cushing, where the two boys were working. When they arrived there they told him that his wife was going to divorce him and cause him trouble over his land, and that if he would deed the land to them they would hold it and preserve it and keep her from getting any of it. He considered the land valuable and wanted them to have it after he was through with it. He did not want the daughter in Drumright to have any of it for the reason that she had an allotment of her own. His third wife had overdrawn his account at the bank and had run him in debt to merchants. At the request of the four children, he executed the deed in favor of them as grantees; and for a consideration of $50 and services rendered, he deeded to O.T. Hubbell an undivided one-fourth interest in the royalty under the 70-acre tract of land. Hubbell deeded it to Jonathan A. Smith, and he, in turn, deeded it to Floyd G. Hubbell. Plaintiff then went from Cushing back to where his wife lived. Soon thereafter she sued him for divorce. He told her and her lawyer that he had deeded the property to the four children before he married her. His wife was granted a divorce and given $500 in settlement of her claim for alimony. Soon thereafter the four children leased a portion of the land for oil. From the proceeds they paid off the mortgage against the land, paid up the taxes, made improvements on the land, repaired the fences, and paid for living expenses for themselves and their father, who lived with them from the time of separation from his last wife.
Prior to the execution of the deed, plaintiff made a will giving all of his property to the four children and excluded the daughter at Drumright for the reason that she had an allotment of land. After execution of the lease, an oil well was commenced on an adjacent tract of land and soon thereafter the Drumright daughter went to see plaintiff to find out why she had been left out of his will. She took him to Drumright, and, after she and a lawyer had talked to him, he made a new will and gave the property to all of the children and authorized the lawyer to bring this suit. He then went home, where he continued to live with the four children.
On trial of the case to the court, it sustained a demurrer to the evidence of plaintiff *Page 62 and entered judgment against him. This action of the trial court is brought here for review.
Under the record disclosed herein, it becomes necessary to determine what weight and credit shall be given the judgment of the trial court in an equity case of this character. In the case of Penny v. Vose, 108 Okla. 103, 234 P. 601, this court said:
"Where this practice is followed in an equity case, however, the court should treat the demurrer to the testimony as a motion for judgment in favor of defendant upon the testimony as produced by the plaintiff. Such a motion and such a consideration of a demurrer to the testimony would naturally and properly require a weighing of all the testimony introduced by the plaintiff by the judge trying the case. Any other rule would result in an absurdity. When the plaintiff has introduced all his testimony and rested, if upon consideration of all such testimony, the court, trying the case without a jury, is of the opinion that the defendant should prevail, it would be an idle thing to require the defendant to put on testimony to bolster up a case he had already won. When the plaintiff has exhausted his testimony and so announces by closing his case, it is not error for the court to weigh plaintiff's evidence and pronounce judgment for defendant where the testimony warrants."
Not only is the above rule a correct one, in our judgment, the record in this case affirmatively discloses that the trial court, after it weighed all of the evidence, entered its judgment thereon. Among other things, it said:
"I think the plaintiff knew exactly what he was doing when he did it, and for a purpose, and the purpose has been carried out, and I doubt very seriously if he could, in equity, cancel this conveyance any way; not with the reasons he gives for transferring the property."
The court, in its journal entry, in part, said:
"Now, on this 3rd day of April, 1928, the above-entitled action comes on regularly for trial, plaintiff being present in person and by his attorneys of record, Streeter Speakman and H.M. Jarrett, and the defendants appearing in person and by their attorneys, Andrews Andrews. Thereupon both parties having announced ready for trial, witnesses having been sworn, plaintiff introduces his evidence and rests; thereupon the defendants and each of them severally interpose their demurrer to the evidence offered by the plaintiff herein and thereupon the court sustains said demurrers, to which the plaintiff duly excepts, and thereupon the court finds that the plaintiff's petition should be dismissed and that judgment should be rendered against the plaintiff herein for costs, to all of which the plaintiff excepts.
"It is, therefore, considered, ordered, and adjudged that the demurrers interposed by the defendants to the evidence of the plaintiff offered herein be and are each hereby sustained, and that the plaintiff's petition is hereby dismissed and judgment is hereby rendered in favor of the defendants and against the plaintiff for the costs of this action to all of which the plaintiff duly excepts."
These proceedings clearly show that the trial court considered and weighed the evidence and rendered judgment thereon, and its judgment in so doing should be affirmed, unless it is shown that the same is against the clear weight of the evidence. The only witness who testified, in the case was the plaintiff. His testimony, in some instances, may have been somewhat in conflict. If it were, the trial court could — as, from the judgment entered, it evidently did — believe that portion of his evidence which was strongest against him. His evidence, in part, was as follows:
"Q. Now, Mr. Connelly, how old was Esther, the woman you married? A. I believe she said she was 23 years old. Q. Was she living down there by the Agency in a house? A. She had been living there. * * * Q. After you married Esther you moved up into the house where she was living and stayed with her? A. Yes, sir. * * * Q. When you married her, you were living in your house in the town of Sac and Fox Agency? A. Yes, sir. * * * Q. You rented out the land that you owned? A. Yes; I rented my land, part of the time, and part of the time all of us farmed it. Q. You and the two girls lived there in a house in town? A. One of them at a time. Q. One at a time? A. Yes, sir. Q. The girls stayed there and took care of you and did the house work? A. Yes, sir. Q. And looked after affairs, and you are a member of the Sac and Fox business committee. A. I have been. Q. How long were you a member of that committee? A. I have been there a good while. Q. This woman — you married this woman? A. Yes, sir. Q. She peddled whisky up there? A. Right close to Fay. Q. You went up to her place? A. She told me herself she peddled whisky for a living at Wewoka and different places, and Stroud. She told me that herself. Q. Now, after you married this woman, you say your children didnt' like it? A. Yes. They didn't want me to have her. Q. You had four children, two boys and two girls? A. Yes, sir. Q. You had a fifth child that lived at Drumright? A. Yes, sir. Q. That girl that lived at Drumright got a Sac and Fox allotment, didn't she? A. My daughter by my first woman. Q. Your daughter at Drumright by your first wife was receiving a Sac Fox allotment? *Page 63 Is that right? A. She had an allotment; yes, sir. Q. Now, these four children, the younger children, they didn't receive any allotment? A. They didn't have no allotment. The land was all gone. Q. You never sold any land, did you? A. No, sir, — well, I did, my wife's. Q. You sold your wife's land and you bought this other land with that money? A. Well, I was in a hole and I got in debt and funeral expenses and she had been sick all the time with rheumatism, my first (sic) wife, the mother of these children. I sent her to springs, a spring over here, and went in the Cherokee Nation. She had rheumatism, and I was in the hole and I had to sell that land. Q. You sold the land to pay your debts? A. Yes, sir. Q. That is the only land you sold? A. Yes, sir. Q. Now, after your last wife died you talked to your children about this property, didn't you? A. Well, we owned it. They were at home together. Q. You told your children, those four — A. Yes, sir. Q. — You wanted them to have your land when you were dead? A. After my death; yes. Q. And you made a will? A. I made a will. Q. Giving all this property you owned to your four children? A. Yes, sir. Q. After you made this deed to the four children, you went up to Drumright? Your daughter from Drumright came down and got you? A. Yes, sir. Q. And took you to Drumright? A. Yes, sir. Q. She talked to you, didn't she? A. Wanted to know what I cut them out for. Q. Wanted to know why you cut her out and gave all the property to the four children, didn't she, and she took you to Mr. Speakman, to Sapulpa, to start this lawsuit, didn't she? A. Yes. You never had any idea of starting this lawsuit until your daughter at Drumright got you to do it, did you? A. No. Q. The first time you ever had any idea of saying you were dissatisfied with this deed was after you had talked to your daughter at Drumright and she had told you she wasn't satisfied and she thought she ought to have part of the property? A. Well, I wasn't satisfied. If they had let me alone I believe I could have got out without any expense with this woman, but they scared me. Q. After you talked with your daughter at Drumright, you made another will, didn't you? A. Yes; made another will. Q. And gave her part of the property? A. Yes, sir. Q. You did that after you made the deed to these four children? A. After: yes, sir. Q. Now, you told the children just recently, told these four children, as soon as this lawsuit was settled you would make a new will and give it all to these four children? A. Yes, sir. Q. You don't want this girl at Drumright to have any of this property? A. I think the last will had six children. Q. You want the property to go to the four children, and that is what you wanted that day in Cushing when you made this deed, wasn't it? A. I have got to understand you before I answer. Q. You had two boys that lived at Cushing? A. Yes, sir. Q. And two girls lived down there with you? A. Yes, sir. Q. They went over to your house where you were living with this woman Esther and they took you to Cushing? A. Yes. Q. When you got to Cushing all four of the children were there, the two girls and two boys? A. Yes, sir. Q. And they told you this woman you had married was going to sue you for divorce and try to get your property and that the way for you to prevent her from doing that would be to deed the property to them, wasn't it? A. Yes. Q. And you said, 'All right: I will do that.' Is that right? A. They was to give it back to me after it was over and me go ahead and do my business like I always had been. Q. So you now say the agreement was you should deed it to the children until you got rid of Esther and when you got rid of Esther they were to deed it back to you? A. Yes, sir. Q. That was the understanding had, and was your understanding? A. Yes, sir. Q. Your purpose in deeding it to the children was to keep Esther from getting it? A. Yes. Q. Now, Esther did sue you for divorce, didn't she? A. I guess she did. I came here to the court. Q. You went down to the bank and borrowed the money? A. Yes, sir. Q. And paid Esther off? A. Yes, sir. Q. And you settled with Esther because Esther thought you didn't have any real estate, didn't she? A. Yes, sir. Q. You told her you had sold the real estate and given it to your children, didn't you? You told her you did that before you married her? A. Yes. Q. And after she found out that you did convey the property to the children before you married her, then she settled with you for money? A. Yes. Q. You still owe Mr. _____________ down here that money? Have you ever paid it? Have you paid the Union National Blank yet? A. Yes. Q. Where did you get the money to pay that? A. What was it for? Q. The money you borrowed from the bank to give to Esther, where did you get the money to pay that back? A. I got it from Brown. Q. Did you pay Brown? A. Yes, sir. Q. Where did you get the money to pay Brown? A. From a piece of land not restricted that came through the Indian office, my share of it, and went to my other children, their share of it, the way the government divided the money. Q. Now, after the deed was made and recorded, the children sold a lease on the land, didn't they? A. Yes. Q. And they took the money they got and paid off the mortgage on the property? A. Yes. Q. And they told you they would do that? A. Yes, sir. They didn't say they would do it. That they was going to give it to me and let me do it, and afterwards they said they did pay it. Q. They did pay it off, didn't they? A. I guess they did. Q. That was $900 and interest? A. Yes, sir. Q. They fixed up the house, didn't they, on the property? A. Out of that money, I guess. Q. They paid up all the taxes? A. Well, *Page 64 they claimed they did. Q. They paid what you owed the First National Bank of Stroud, didn't they? A. I don't think I owed anything at that time. Q. Your wife Esther had written checks on that bank and you had an overdraft there? A. I don't think I owed any there, because I had a little money there too. Q. Your wife Esther checked that out and left an overdraft? A. Yes, sir. Q. They took up that overdraft? A. Yes, sir. Q. Your wife Esther bought goods all over town, several hundred dollars worth, and they paid up those bills? A. Yes. As long as I was with her I had to pay the grocery bills and my family — I had to got a divorce. Q. You had to get a divorce from Esther to keep her from spending all your money? A. She got the divorce. She asked for the divorce. Q. How much money did she run you in debt there in Stroud in the little while she lived with you? A. It amounted to pretty near $100 (sic), with the $500 and the grocery account. Q. You paid that all off? A. Yes, sir. Q. You paid it out of the proceeds of this oil lease, didn't you? A. Yes, sir. Q. These children are not trying to sell this land, are they? A. I understood they divided the money. Q. You have never heard of them trying to sell any of this land, have you? A. I don't understand. Q. Well, never mind. After you started this case, after you employed Mr. Speakman and started this lawsuit, you went back down to the Agency? A. Yes, sir. Q. You have been living there with the children ever since? A. Part of the time, and part of the time I would go around. Q. Go around and visit the different children? A. Yes, sir. Q. A day or two ago your daughter at Drumright came down and got you and took you up to Drumright? A. Yes, sir. Q. And brought you down here today to this trial? A. The one at Drumright; yes. Q. And just prior to that time you were staying there at the Agency with these children? A. I always lived there and I stayed there all the time — most of the time. Q. They looked after your property and cooked your food? A. Yes, sir: and cropped it and fenced it. Q. Looked after the fences and did the work? A. Yes. sir. Q. You want them to have the property when you are through with it? A. Yes, sir. Q. That is, these four children. Now, these other children by your former wives, you don't want them to have any of it at all? A. Well, that is how I came to cut them off, because they had an allotment. Q. Your purpose in giving this property to these children was because these children never received any allotment? A. In case I was to die they was to get it. Q. That is your understanding of it now? A. Yes, sir. Q. They leased that land for all it was worth, didn't they? A. Yes, they leased the land. Q. The company is paying the rentals? A. Yes, sir. Q. They are using the rentals of the land to keep up the house? A. Keep up the house? Q. Keep you and pay the grocery bill, etc., aren't they? A. The bills — I don't have no way of keeping — I did have stock there. I just couldn't keep it and haven't got any chickens and no pigs and don't have no way to keep them with. Q. You don't want to sell this land? A. No. Q. You think it is valuable land? A. Or I would have sold it long ago. If it was mine I could have mortgaged it, which I did one time — that is what I was going to pay Gum Brothers. Q. You want the property to go to these four children when you are through with it? A. Yes."
This testimony clearly shows that, after he is through with the land, he wants the four children to whom the land was deeded to have it. He does not want the daughter at Drumright to have any of it for the reason that she had an allotment, while the four children did not. It shows that plaintiff had made a will, before he went with his daughter to Drumright, in which he willed all of the property to the four children who were the grantees in the deed; that, thereafter, the Drumright daughter came and took him to Drumright, and, he testified, he never had any idea of starting this lawsuit until she got him to do it. She also got him to execute a new will in which she was included as one of the beneficiaries, but even then, on the trial of the case, he testified he did not want her to have any of the land for the reason that she had an allotment of her own, and that it was his intention to make a new will and give all of the property to the four children who were the grantees in the deed, after he was through with it. This shows a clear desire on his part for the four children, who were the grantees in the deed, to have all of the land after his death.
He further testified that the four children told him that Esther, his third wife, was going to sue him for a divorce and try to get his property and that the way for him to prevent her from doing so would be to deed the property to them until he got rid of her and they were then to deed it back to him; and that the purpose in deeding, it to the children was to keep her from getting it; that she did sue him for a divorce and he settled with her for $500 because she thought he did not have any real estate. He told her he had sold the land to the children before he married her, and after she found out that he had conveyed the property to the children before she married him, she settled with him.
This testimony shows that the substance of what the children said to him was true; that is, that Esther was going to sue him for divorce and try to get his property. It was on this representation that the deed *Page 65 was made in favor of the children as grantees, and the record discloses that the deed was dated before his marriage to Esther, although it was executed after he married her. He represented to her that it had been executed and delivered before he married her, and that he did not own any land at all. On this representation, which she evidently believed, the settlement of alimony was made for the sum of $500. In other words, he deeded the land to the four children for the purpose of defrauding his wife.
The cases cited by plaintiff in error, in our opinion, do not disclose facts like those disclosed by this record. In substance, this record shows that the husband deeded the land to the four children for the purpose of defrauding his wife in her suit for alimony, and after the suit was over, the husband brought this suit, at the suggestion of the Drumright daughter, to cancel the deed in favor of the children. Under the facts disclosed by this record, the trial court, as a court of equity, committed no error in leaving the parties where it found them.
After hearing all the evidence and the argument of counsel, the trial court entered judgment against plaintiff. Since we cannot say its judgment in so doing is against the clear weight of the evidence, it is accordingly affirmed.
LESTER, C. J., CLARK, V. C. J., and CULLISON and KORNEGAY, JJ., concur. RILEY and SWINDALL, JJ., dissent. ANDREWS, J., absent and disqualified. McNEILL, J., absent.