(dissenting).
I dissent from the conclusions reached by the majority opinion.
The first paragraph of the syllabus would imply that there was no consideration for the conveyance involved. This is not sustained by the record. There is no dispute in the evidence that the son agreed to pay the taxes, pay the insurance, keep up the repairs on the property and permit his mother to live on the premises rent free for as long as she remained single. These things he did for a period of almost three years, at which time the mother remarried, and this lawsuit was commenced. In the event of her remarriage, she was to continue to live on the premises upon paying the taxes and insurance. There was a good and valuable consideration for this conveyance, and hence the rules applied in the majority opinion have no application here.
The second paragraph of the syllabus would indicate that the findings of the trial court were sustained by the evidence. This implies that there was evidence that the son had committed fraud, which was the basis of the suit. A careful searching of the record in this case will disclose that there is no evidence of fraud in this record, and the conclusion of the court is erroneous and inequitable under the facts and circumstances in this case. The defendant was a dutiful son and was solicitous for her welfare. He sold the cattle which his father left when he died and turned the proceeds from the sale over to his mother. He made his mother an army allotment of $37.50 per month, bought a butane system for the -house, pruned trees, bought groceries when he visited her, and paid the taxes on the place for 1959, 1960 and 1961 and paid the insurance on the place, as pointed out above. All went well between mother and son until her marriage to her second husband, Hamilton, after which the son had difficulties with him.
The rules of evidence as to the degree of proof required to establish fraud are applicable in this case since the mere relation of mother and son does not in itself create a confidential relationship. The evidence in this case does not show such relationship sufficient to raise the presumption of fraud and undue influence and cast the burden upon the defendant to rebut such presumption.
In the case of Treece v. Treece, Okl., 366 P.2d 625, we said:
“A confidential relationship does not necessarily arise from the relationship of parent and child; and in determining the validity of deeds from parent to child the existence of fraud and undue influence depends on the facts and circumstances of each particular case, and if the evidence of plaintiff fails to show fraud and undue influence and a confidential relationship between grantor and grantee, then the plaintiff’s cause must fall.”
In the body of the opinion we said:
“The case of Schatz v. Wintersteen, 201 Okl. 660, 208 P.2d 1136, 1139, is similar in some respects to the present case. In speaking there of the parent-child relationship and undue influence, we said:
“ ‘The fact that the relationship of father and son existed between the parties is not in itself sufficient to raise the presumption of fraud and undue influence. It is only when in addition thereto a confidential relationship is shown to exist' between them that the presumption arises and casts the burden upon the party claiming the benefits of the transaction to prove the same to be fair and free from fraud. Flowers *863v. Flowers, supra; Weitz v. Moulden, supra. (109 Okl. 119, 234 P. 583)”
* * * ⅜ * *
“The plaintiff urges that a confidential relationship is shown by the evidence in this case. We do not believe that such relationship is established. In defining a confidential relation, this Court held in Hamburg v. Doak, 207 Okl. 517, 251 P.2d 510:
“ ‘A confidential relation arises by reason of kinship between parties or profession, business or social relations that would reasonably lead an ordinary prudent person in management of his business affairs to repose that degree of confidence in the defendant, largely resulting in substitution of the will of the defendant for that of the plaintiff in material matters involved in the transaction.’ ”
See also Sporn’s Estate v. Herndon, 190 Okl. 149, 121 P.2d 602; Canfield v. Canfield, 167 Okl. 590, 31 P.2d 152; Hamburg v. Doak, 207 Okl. 517, 251 P.2d 510, and Smith v. Smith, Okl., 365 P.2d 142.
Applying the principles of law in Treecc v. Treece, supra, and the cited cases, I do not believe that a confidential relationship between the plaintiff mother and the defendant son is established. It was incumbent upon the plaintiff to submit proof to sustain the allegations of fraud by a preponderance of the evidence and to repel all opposing presumptions and proof of such weight and cogency as to satisfactorily establish the wrongful conduct charged. Sanders v. Rhea, 119 Okl. 208, 249 P. 350.
The third paragraph of the syllabus of the majority opinion would indicate that the doctrine of laches does not apply. Not only is there grave doubt about this, but that the alleged cause of action was barred by limitation is a strong possibility.
I therefore respectfully dissent.
I am authorized to say that Vice Chief Justice HALLEY and Justice BERRY concur in this dissent.