(after stating the facts as above).
As to the first contention, we think the defendant's answer states a valid defense to plaintiff's petition, and that the demurrer thereto was properly overruled. As to the second, the allegations in defendant's cross-petition, if considered as true, and such would be the case as against a general demurrer, would, in our judgment, constitute a cause of action against plaintiff for the recovery of the $300 which defendant, in such cross-petition, claims to be due him on plaintiff's note, and that the demurrer thereto was properly overruled. However, while the first and second contentions are presented, neither of them are argued in plaintiff's brief.
The second and third contentions are properly treated under one, inasmuch as, if the court erred in overruling motion for a new trial, it would constitute error because of the question raised in the third contention. The contention being, or the question involved being, that, if it were a violation of law for defendant to hold and control the 320 acres in question, a sale of same would be void; and that, if defendant fraudulently induced plaintiff to purchase the lease on same, and by false representations led plaintiff to believe that such was a valid and binding lease, and that plaintiff, relying on such representations, *Page 771 was thereby induced to purchase said lease, and parted with his money therefor, and executed his note therefor — upon defendant's failure to give possession of the land under the lease, and the turning out that the lease was void and worthless, and that plaintiff received nothing in consideration for his money and note, upon that theory, he should recover back his $400, and obtain an order for the cancellation of said note. Plaintiff in error cites MacLaughlin v. Ardmore L. . T.Co., 21 Okla. 173, 95 P. 779, 32 U.S. St. 641, Denton v.Capitol Town-Site Co., 5 Ind. T. 396, 82 S.W. 852, Combs v.Miller, 24 Okla. 576, 103 P. 590, and the cases therein cited, in support of his contentions.
It will be conceded that if plaintiff's theory is true the authorities cited are, in a measure, in point, and would, in a measure, be controlling as having settled the question involved. But defendant's answer raises an issue as to the correctness of plaintiff's theory. Plaintiff alleged that defendant sold the land to Tucker, which sale was in violation of law; that, in order to evade the penalties of the law, he pretended to convey only the improvements, receiving therefor the seven $100 notes from Tucker, and that defendant obtained a lease from Tucker which, by false representations, plaintiff was induced to purchase; that plaintiff was inexperienced, being a stranger, and believed such lease to be valid. But defendant answers, alleging that he did not sell the land to Tucker, but sold the improvements only, and alleged and testified that such improvements were worth $700; that he received seven $100 notes in consideration for such improvements, and that, in consideration of said $700, part paid and part to be paid, he assigned said notes and lease to plaintiff; that plaintiff had planned the entire deal himself; that plaintiff was the first to bring up the subject, approached defendant on the subject, and induced defendant to sell the improvements to Tucker, so that Tucker, being allowed under the law to allot the land in question, could therefore execute a valid lease on the premises; and that the sole transaction was brought about by plaintiff's own influence and inducements, with the object of procuring a lease on the land in question. Hence, if defendant's *Page 772 theory be correct, then he has violated no law, and plaintiff would not be entitled to recover under the rule announced in the authorities cited by plaintiff in error. So the issues being raised in this manner, it devolved, as the court correctly stated in rendering the judgment, upon the plaintiff to prove, by a preponderance of the testimony, the correctness of his theory; and that defendant, in maintaining the theory of his cross-petition to recover on the $300 note, assumed the burden of proving the same by a preponderance of the testimony.
The testimony on the issues raised is very conflicting. In fact, it is in direct conflict. Plaintiff, in his behalf, testified that defendant, by fraud and misrepresentations, induced him to purchase the lease; that defendant knew said lease was void; and that defendant had sold the land to Tucker for the purpose of obtaining the lease from Tucker, so that he could induce plaintiff to purchase same. Defendant, in his behalf, testified that he had never mentioned the subject to plaintiff until plaintiff brought the matter up himself; that plaintiff had suggested the entire plan and directed the entire procedure in the transaction, and induced defendant to enter into such a transaction, promising to purchase the lease and pay $700 for same. There was no conflict in the testimony as to the value of the improvements, but a direct conflict in the testimony relating to the vital question involved.
The court, after hearing all the evidence, in rendering his judgment, sums it up as follows:
"It appears from the evidence that at the time the payment of the said $400 the plaintiff executed to the defendant a note for $300, making the consideration for said lease $700. The plaintiff contends that at the time of the purchase of the lease the defendant stated to him that it was a substantial and lawful lease, and that he relied upon the statements so made by defendant, and that he (the plaintiff) was not familiar with the laws, usages, and customs prevailing in this country at that time; that he was induced to surrender the note so executed by the lessor of the defendant at the instance and request of the defendant. The prayer of the plaintiff is that he have and recover of and from the defendant the $400 by him so paid to the defendant, and that the defendant *Page 773 be required to produce the said note for $300 in court for cancellation.
"It appears from the evidence on the part of defendant that he (the defendant) had sold to one Tucker the improvements upon the lands in question, and had taken from Tucker a seven-year lease, and secured by seven certain promissory notes, each for $100, and that the rents annually upon the place and from the premises were to go to the liquidation of said notes until all had been paid. The defendant denies that at the time, or at any time, did he inform the plaintiff that the lease was valid, and denies that he ever requested the plaintiff to surrender the Tucker notes.
"Judging the credibility of the witnesses, under the theory that the credibility of the witnesses is to be determined from the appearance and manner of the witnesses while testifying, their demeanor while on the stand, their intelligence or lack of intelligence, their candor in testifying, and the means that the witness might have for knowing and being informed of the things about which he gives testimony, and the witnesses testifying in this case all being entire strangers to the court, the court is inclined to give full credence to the matters and things testified to by the witnesses.
"It is incumbent upon the plaintiff to establish, by a preponderance of the evidence, his right to recover the $400, or any part thereof, paid by him to the defendant. * * * It is incumbent upon defendant, before he would be entitled to recover from plaintiff upon said note, to establish his right to recover by a preponderance of the testimony."
Upon this view of the case and of the testimony of the witnesses, weighing the testimony of each witness by the rule announced by the court, the court rendered judgment, decreeing a cancellation of the $300 note and denying plaintiff the right to recover the $400 paid to defendant. It cannot be urged that there is not evidence reasonably tending to support the judgment; and we follow the rule of this court that, where the evidence is conflicting, if there is evidence reasonably tending to support a verdict or judgment of the court below, it will not be disturbed by this court.
The plaintiff's right of recovery was based solely upon the question of fraud. The burden was upon him to prove the acts *Page 774 constituting the fraud. The evidence was in direct conflict as to the acts. The court heard all the evidence and decided therefrom that the plaintiff had not proved his case by a preponderance of the evidence. On the other hand, defendant's cross-action demanding affirmative relief, the burden was upon him to prove his right of recovery on the $300 note by a preponderance of the evidence. The court heard all of same, and, the evidence being in direct conflict, decided that the defendant had failed to prove his grounds for a recovery by a preponderance of the evidence. It is evident from the record that some one testified falsely; but it is impossible for this court to say who. The trial court had all the witnesses before him, heard their testimony, and, after hearing same, rendered judgment thereon, and, under the oft-repeated rule of this court, as announced above, the judgment will not be disturbed.
The judgment should be affirmed.
By the Court: It is so ordered.