ON REHEARING.
STOCKSLAGER, J.Counsel for appellants filed their petition for a rehearing, and earnestly urge that the conclusions-reached by a majority of the court are erroneous both as to law and facts. The facts are very fully set out in the opinion, and if any were omitted they are shown in the dissenting opinion, prepared by Justice Ailshie. For these reasons we deem it unnecessary to further refer to the facts, except as it may become necessary in applying, the law to the facts as we understand them, •
In the petition it is stated that: “The relationship existing between Stuart and Hauser was one of great confidence;, that, in addition to this, Hauser was the trustee for Stuart of the property involved in the controversy. Hauser was also the confidential agent of Stuart in,regard to the sale and disposition of his interest in the property for whatever sum or consideration-he.saw fit to sell it. He held a power of attorney from Mr. Stuart to.this effect. So that there are three-elements at the outset which are not disputed nor contradicted by any testimony:-1. :The relationship of confidence; 2. The relationship of trustee and .cestui q.ue trust; and 3; The relationship of principal and agent.” Our attention is called to the.first allegation of *83the complaint, which is not denied: “That during all the times in this complaint mentioned, and since long, prior thereto, and down to the time of the commencement of this action, this plaintiff, Granville Stuart, and oñe Samuel T. Hauser were personal friends, between whom there existed the closest relations, social, business, and political, by reason of which this plaintiff, during all the. times mentioned in the amended complaint herein, and until the time of the commencement of this action, reposed in the said Samuel T. Hauser the greatest trust and confidence.” The record in this ease as made by both appellant and respondent certainly supports this allegation, and it would have been bad faith on behalf of respondent to have denied the relationship in his answer — which was verified — and then from the witness-stand relate the facts of a long intimate relationship, with appellant. The record discloses, however, that the first allegation of the complaint goes further, and alleges that respondent had exercised over appellant an unusual influence. This part of the allegation is denied in the following language: “Denies that this ■ answering defendant ever at any time exercised over the said plaintiff an unusual influence, or any influence whatever.” The plaintiff is not complaining in this action of the existence, of an intimate social, business, and political relationship, but that by reason thereof respondent had an unusual influence over him. This part of the allegation we think sufficiently denied in the above-quoted averment of the answer. I think the record in this case abundantly shows that the parties to this action were very close friends, and their actions show the greatest trust and confidence in each other. This may be said of one as well as;' the other, and covers a period of a great many years, apparently down to the time of the commencement of this action. They were early settlers of Montana, sharing each other’s fortunes in many business transactions, It is shown that at the time of the commencement of this action both parties are well advanced in years, and have spent their lives in Montana in active business — mining, cattle business, and banking, etc. It is further shown by the record that either is able to take care of himsglF, in any business transaction^ unless it be the one we are now considering.
*84Now with these facts before us, let us apply the law to which our attention is called in the petition. We have read State v. Thum, 6 Idaho, 323, 55 Pac. 858, but do not think the facts in this- come within the rule laid down by the majority of the court in that case. There the act complained of was absolutely prohibited by law, and the party committing it was guilty of a felony. In Ross v. Conway, 92 Cal. 632, 28 Pac. 785, Mr. Justice Harrison, speaking for the court, says: “The issues before the court were, in substance, whether Mrs. Ross was at the respective dates on which the deeds of trust were executed of weak mind, or able to comprehend the provisions of the instruments, and whether the .defendant, Conway, used the influence which he had acquired over her by virtue of being her spiritual adviser (for the purpose of procuring her to make such disposition of her property.” Casborne v. Barsham, 2 Beav. (Eng. Ch.) 78, does not support the contention of appellants. The bill prayed that the deed might be delivered up to be canceled, or that it might be allowed to stand only as a security. The deed had been obtained from Dennis Chandler, by Barsham, who was Chandler’s solicitor, etc. The evidence showed that Barsham had great professional influence over his client. This both Barsham and Chandler denied. In passing on this question Lord Langdale said: “The object of the second part of the issue was to ascertain whether Barsham, availing himself of his character of solicitor, had obtained the deed by undue influence, etc. Omitting such transactions as are void by the policy of the law, it is plain that there- are -transactions in which there is so great an inequality between the transacting parties, so much of habitual exercise of power on the one side and habitual submission on the other,- that, without any proof ox the exercise of power beyond that which may be inferred from the nature of the transaction itself, this court will impute an exercise of undue influence.....But other cases do not rest solely on the nature of the transaction, and in the fact of habitual Or occasional influence it is required to show that some advantage was taken, or that there was some fear, some use of threat or of undue practice dr persuasion.” Fitch v. *85Reiser, 79 Iowa, 34, 44 N. W. 214, is also cited by appellants. We only quote the syllabus: “A voluntary conveyance by a father of substantially all his property to his daughter will be set aside on the ground of undue influence where it is shown that the weakness of mind of the grantor, who was over eighty years old, was extreme, and that in other business transactions he was wholly controlled by and dependent upon the grantee.” Graham v. Burch, 44 Minn. 33, 46 N. W. 148, a Minnesota ease, is a very similar one. In this case an infirm old man, with impaired faculties, conveyed to his daughter and her infant children his entire estate, to the exclusion of another daughter from any participation in said estate. Held to be the result of undue influence. The case of Roby v. Colehour, 135 Ill. 300, 25 N. E. 777, involves the relation of attorney and client. The statement of facts details all the circumstances leading up to the execution of the conveyance to the attorney by the client and the purposes for which it was given. A careful reading of this case discloses a very different situation from the case under consideration. In Kyle v. Perdue, 95 Ala. 579, 10 South. 103, the syllabus says: “In this ease the instrument assailed by the grantor, an old woman in feeble health, by which she conveyed all her property to the grantees, wealthy men engaged in active business pursuits,” etc., does not apply to the case at bar. The case of Waddell v. Lanier, 62 Ala. 347, involves a deed executed by an old lady nearly ninety years of age, partially paralyzed, her mind enfeebled, and her body diseased. She executed a deed of all her property to Lanier upon a purely voluntary consideration, etc. The court held that the deed should be set aside. In Boney v. Hollingsworth, 23 Ala. 690, a father executed a deed conveying certain lands to his sons, but filed it away among his papers, and never delivered it. After his death the grantees obtained a voluntary relinquishment from their sister of all her interest in the lands by representing to her that their father on his deathbed had declared it to be his intention that they should have them. The relinquishment was set aside in equity because the grantees failed to show that they stated fully and fairly their father’s dying declaration. Counsel for appellant says: “I must again reiterate that all these relationships were absolutely ad*86.mitted upon'the trial of-this ease to have existed between these «parties. Such being the case, we now ask the court to apply .-these legal principles which are applied everywhere by other .courts when' such relationships are shown to exist between parties/’
It certainly cannot be seriously contended that Mr. Stuart, .the appellant, comes within the rule laid down in any of' these -cases. As I read the record, he is, and for the past thirty years at least has been, a strong, vigorous, business man. The rule •sought to be invoked by counsel for appellant applies to parties •for some reason disqualified from caring for themselves in .business transactions. Courts of equity, in cases of this char..aeter, certainly should and do consider the condition of both parties to the transaction complained of as to business capacity, intellect, and any and all reasons that may have prompted the execution of the instrument. As to business capacity and intellect, the record does not disclose that Mr. Hauser had any advantage over Mr. Stuart; and, if the theory of appellant is to -be accepted as true, that this property at the time of the execution of the deed was immensely valuable, and such fact was •known to Mr. Stuart as well as Mr. Hauser, then there never .was a time that Mr. Hauser could take any advantage of Mr. ■ Stuart by reason of his indebtedness to the bank of .which Mr. Hauser was president. It would not seem that a man of Mr. Stuart’s business capacity and intellect would go to South America expecting to be absent four years, and leave an absolute deed in the hands of Mr. Hauser, conveying to him property of large value, without a written word to show that the deed was intended only as security for an insignificant debt compared to the value of the property, knowing, as he certainly did, that the .death of Mr. Hauser would extinguish his equities in the property.
The next question, ably and earnestly urged by counsel for appellant, is the inadequacy of the consideration for which the deed was executed. If there was a settlement between these •parties, and the deed was executed, as found by the trial court, for the purpose of extinguishing certain indebtedness from appellant to respondent, and in no sense intended as a security, *87then the question of value is unimportant; hence the question arises, Was the court justified by the evidence in such finding? It must be borne in mind that the court will not disturb this .finding unless it is apparent from the record that the trial court was wholly unjustifiable in its conclusion; in other words,, this court will not reverse a judgment of a trial court on findings based upon conflicting evidence. He had the opportunity of hearing all the evidence, of seeing the witnesses, and should be and is much better prepared to judge who is mistaken or who should be believed than this court. We only have the record, which of necessity is not always complete and does not give every detail of the trial, or all the evidence before the trial court. The original opinion goes into the evidence very extensively, and deals with all the facts in the case; hence it is unnecessary to repeat here. A careful review of the evidence and the new authorities cited does not convince us that a rehearing should be granted.
Eehearing denied.
Sullivan, C. J., concurs.