(dissenting).
This action is one of foreclosure of a real estate mortgage executed to secure payment of a promissory note. Defendants filed an amended answer and counterclaim seeking, on the basis of fraudulent statements alleged to have been made to them by respondents, a rescission of their agreement with plaintiffs, cancellation of the note and mortgage, return of certain real property conveyed by defendants to plaintiffs, or its money equivalent, and for *220certain damages for loss of crops, plus the value of improvements made by appellants.
In the amended answer and counterclaim of the defendants, the following are set forth as the false and fraudulent statements alleged to have been made by the respondents, and upon which they rely as the basis for their defense to the complaint and for their counterclaim:
“(a) That Plaintiffs owned a ditch right of way across the lands of one, Morris Jessup, for irrigating the above described real estate.
(b) That the house on the above described real estate was in a liveable condition and in a state of good repair.
(c) That Plaintiffs owned certain fences, gates, water trough and water heater.
(d) That Plaintiffs had raised, and Defendants could raise, fall wheat on 120 acres of the land on the hillside then owned by Plaintiffs or that the 120 acres could be watered by means of a '■ sprinkling system which could be put in the spring and drain under the hill, and any crop could be raised thereon.”
In the Findings of Fact, the trial court found:
“V.
“Prior to the execution of the instruments above mentioned and during the negotiations between the parties, defendants went upon the premises being offered by Plaintiffs and observed and inspected the house, outbuildings, the lands and related items being sold.
“X
“That the plaintiffs did not make any misrepresentations as to the condition of the home, the premises, the history of the crops, the water or right of •way, That the defendants were aware that plaintiffs had not occupied or operated the premises for several years prior to the sale; that the house was in a reasonably livable condition when transferred by plaintiffs to defendants', that any lack of water for the growing of crops was occasioned either by a general drought condition or by defendants’ own conduct in not obtaining the water, and was not the result of any misrepresentation by plaintiffs; * * * ” (Emphasis supplied.)
In conjunction with such finding of fact, the trial court concluded, among other things:
“II
“Defendants have failed to establish the allegations of their Counter Claim and are not entitled to any recovery or relief thereon.”
From my examination of the record there appears to be conflicting evidence of a substantial nature on all the issues *221presented on the question of fraudulent representations alleged to have been made by the plaintiffs to the defendants. The conflict in this testimony is reflective of the versions of what took place as related by the parties to this action, and the conflict was resolved by the court against the appellants.
Fraud is not to be presumed, but must be proven in each of its elements by clear and convincing evidence; Nelson v. Hoff, 70 Idaho 354, 218 P.2d 345; Lott v. Taylor, 60 Idaho 263, 90 P.2d 975; Barron v. Koenig, 80 Idaho 28, 324 P.2d 388; Walker v. Nunnenkamp, 84 Idaho 485, 373 P.2d 559. One of the basic and essential elements of fraud, that must be proven is that there was a representation of facts that was false, Walker v. Nunnenkamp, supra; Weitzel v. Jukich, 73 Idaho 301, 251 P.2d 542. Here the trial court specifically found that there was no such misrepresentation, and thus an essential element of the claim of fraud is absent.
This court has repeatedly held that the findings of the trial couit will not be disturbed on appeal when supported by competent and substantial, although conflicting evidence, Thomson v. Marks, 86 Idaho 166, 384 P.2d 69, and cases therein cited.
Although the trial court did consider the fact that the plaintiff had not resided upon the property for a number of years, no inference from that alone is sufficient to reverse the judgment in this case. This court cannot presume any error as being inherent in the trial court’s finding of fact in that regard. In Conley v. Amalgamated Sugar Co., 74 Idaho 416, 263 P.2d 705, this court stated:
“After the court has found, the criteria are not what other or different findings the evidence could or would sustain, not what findings are plausible, not the weight or quality of the evidence or credibility of witnesses, but the sole criterion is simply whether there is substantial evidence, regardless of conflict, to sustain the findings as made, with all reasonable inferences and intendments in favor thereof. This proposition is so universal, so oft repeated and adhered to as to need no citation of authority in support thereof. It is not what evidence tends to support appellant, or negative that favorable to respondents, but it is what evidence tends to support respondents, with all reasonable inferences and intendments to be drawn in favor of respondents, which controls the determination of the controversy in this Court.”
In Judy v. Reilly Atkinson & Co., Inc., 59 Idaho 752, 87 P.2d 451, it is stated:
“In Hill v. Porter, 38 Idaho 574, 223 P. 538, sec. 4 of the syllabus is as follows:
“ ‘It is presumed that the decree of a district court is regular and valid, *222and the burden of establishing error is on the party alleging it.’
“See also, Donahoe v. Herrick, 44 Idaho 560, 260 P. 150, and 5 C.J.S. Appeal and Error, § 1533, p. 262, wherein it is said:
“ ‘It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal was taken. In other words it will be presumed on appeal, absent contrary showing, that the trial court acted correctly and did not err, and that the court will correctly settle such questions as may arise in further proceedings in the cause. Indeed error is never presumed on appeal, but must be affirmatively shown by the record; and, since the appellate court need not search the record for possible errors, the burden of so showing it is on the party alleging it, or, as sometimes stated, the burden of showing error affirmatively is upon appellant or plaintiff in error. Appellant or plaintiff in error, under the foregoing rule placing the burden upon him to show error, must show that the record will not support the judgment on any theory.’ ”
See also: I.R.C.P. 52(a); Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788; Wm. Walker Co. v. Pocatello Monument Co., 71 Idaho 294, 230 P.2d 701; Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393.
It is my conclusion that the judgment in the instant action, being a decree of foreclosure and order of sale, should be affirmed.
SMITH, J., concurs.