(dissenting).
I cannot concur in the Majority opinion.. As I view the opinion, it unjustifiably deprives the defendants, Mr. and Mrs. Will, of' the partial recoupment of their losses granted them by a trial court judgment that is. neither contrary to law nor to the evidence, and, under all recognized rules of' appellate review, is beyond the proper prerogative of this court to reverse.
In this case, defendants’ theory was that,, although their written real estate mortgage was not executed by W. F. Taylor until August 29, 1956, they had an equitable mortgage antedating that, and arising out of" their previous oral agreement with Taylor-to deed him the lot and to advance $5000.00-to help in the construction of the house-thereon.
The first issue presented in the brief concerning said agreement, and the equitable-mortgage, was whether or not it was enforceable under the Statute of Frauds — defendants’ argument being that their delivery of the lot’s possession to Taylor, not. only was the giving of a sufficient consideration to render the agreement a binding-contract, and their lien effective from that time on, but also constituted sufficient partial performance to render the contract partially executed and therefore beyond operation of the Statute -of Frauds. The trial court’s findings and judgment uphold this, theory.
In its brief, plaintiff expressly recognizes that Taylor obtained possession of the lot from defendants before it ever furnished, any materials for constructing the house;. *695and — instead of taking issue with defendants over the effective date and priority of their claimed equitable mortgage — plaintiff merely maintains that such mortgage was invalid for want of consideration. In its reply brief, plaintiff says that Collins v. Lackey, 31 Okl. 776, 123 P. 1118, 40 L.R.A., N.S., 883, (which defendants cite in support of their argument) held that payment of the purchase price of land, pursuant to an oral •contract of sale, was insufficient to take said contract out of the Statute of Frauds. While it is true that, in the body of its ■opinion in that case, this court said that such payment alone was not sufficient performance to authorize the court to enforce •specific performance of such a contract, the ■holding of the court as reflected by the first paragraph of the syllabus, was that possession “ * ⅜ * not taken in pursuance of ■the contract, or with the knowledge and ■consent of the vendor, is insufficient to relieve the contract of the operation of the ■statute of frauds * * (Emphasis •mine). In the body of the opinion (as defendants point out) the court further said:
“The weight of authority, both in England and in this country, however, supports the rule that possession alone of land under a verbal contract, when delivered to the vendee, is sufficient performance to take the case out of the statute of frauds, * * * (Emphasis mine).
The Annotation at 101 A.L.R. 923, 1003, ■demonstrates that this statement is correct. Thus it will be seen that plaintiff’s argument on appeal fails to demonstrate error in the -trial court’s judgment to the effect that defendants had an equitable mortgage which .antedated plaintiff’s materialman’s lien.
But the Majority opinion does not deal •with the above, or any matter affecting the ■validity of defendants’ claimed equitable mortgage. All said opinion deals with is the question of priority between the mortgage and plaintiff’s lien, and proceeds to decide the matter by taking a view contrary to that of the trial court, on the matter of rnotice. If defendants’ claim that they had a valid equitable mortgage is correct, then the facts that their written mortgage had not yet been executed, or recorded, at the time plaintiff had notice (or its legal equivalent) of their equitable mortgage, through its agent, Gilbert, is not entitled to the consideration, and importance, on this question of priority, that the Majority opinion appears to give those facts.
The Majority’s crucial conclusion that Taylor’s purpose in informing plaintiff, through its agent Gilbert — before any material was ever purchased from plaintiff— that the defendant Will was furnishing the money to build the house, was controlling on the question of whether that information was sufficient to excite inquiry as to what arrangement, if any, had been made to secure said defendant for said advancement, or loan, of money, is to me, a strange and novel one. It is not supported by authorities cited in the Majority opinion, or any others of which I am aware. The Corpus Juris quotation in Metcalf v. Drew, the California District Court of Appeals case (78 Cal.App.2d 226, 177 P.2d 620) referred to in said opinion, says (immediately before the portion quoted by the Majority) :
“As to what will be a sufficiency of facts to excite inquiry no rule can be very well established. Each case depends upon its own facts and circumstances. * ⅜ * It may be premised that the means of knowledge must be available and of such character that a prudent man might be expected to take advantage of them. There must appear in the nature of the case such a connection between the facts discovered and the further facts to be discovered that the former may be said to furnish a reasonable and natural clue to the latter. * * * ”
The California opinion also says:
“At page 411 of the same opinion [West v. Great Western Power Co., 36 Cal.App.2d 403, 97 P.2d 1014], in 36 Cal.App.2d, at page 1019 of 97 P.2d occurs the following language quoted from Northwestern Portland *696Cement Co. v. Atlantic P. C. Co., 174 Cal. 308-312, 163 P. 47, particularly applicable to the present case: ‘ “Whether a party has notice of ‘circumstances sufficient to put .a prudent man upon inquiry as to a particular fact/ and whether ‘by prosecuting such inquiry, he might have learned such fact’ (Civ. Code, § 19), are themselves questions of fact to be determined by the jury or the trial court. * * * Findings of ultimate facts are binding upon appeal, not only where there is a direct conflict regarding the probative facts, but when those facts are fairly susceptible to opposing inferences.” ’ ” (Emphasis mine).
The emphasized portion of the above quotation is the criterion commonly recognized by this court, and other appellate courts, for determining whether the findings of the trier of fact are to be overturned, and it belies the Majority’s apparent idea that such a finding, in order to be upheld, must be in accord with: “ * * * all of the inferences to be drawn * * * ” from the evidence. (Emphasis mine).
Conceding that the trial judge, in the present case, might have concluded from the evidence, that plaintiff’s agent was not informed, or acquainted — prior to his company’s sale of the materials that went into the house — of such facts as would have made it his duty to inquire into the arrangement between Taylor and the defendant Will for the latter’s security for repayment of the construction money he had agreed to advance, this does not mean that the evidence was not susceptible of the opposite conclusion. In my opinion, this was a matter on which reasonable minds might well have disagreed; and the trial court’s conclusion and judgment cannot be held to be either without competent evidence reasonably tending to support it, nor clearly against the weight of the evidence. Accordingly, that judgment should have been affirmed, instead of reversed, as the Majority opinion has done. For the foregoing reasons, I respectfully dissent to that opinion.