(dissenting):
I dissent.
This is a case in equity to cancel two deeds. In such a case this court gives due consideration to the fact that the trial judge saw the witnesses and heard the evidence. However we need not affirm his findings merely because there is some credible evidence to sustain them. As was stated in the case of Cram v. Reynolds et al.1
[WJhen in an equity case findings of fact are clearly not, in our opinion, justified by the evidence, it is our duty to arrive at the conclusion we think is compelled by the proof, regardless of the opinion of the trial judge.
There is no dispute in the evidence. The trial judge elected not to believe the defendant Teresa Nelson and so ruled against the plaintiff. In doing so I think he erred.
Virgil Homer Nelson was the husband of Teresa and the father of V. Homer Nelson. He became a semi-invalid in 1936 with a 75 per cent disability and depended entirely upon his wife for his care and comfort. She was in constant attendance upon him at all times during almost one third of a century.
*85Among the properties which he owned were some 1700 acres of land in the mountains which he called the Homestead. Teresa for a long time had importuned him to put this land in joint tenancy with her, all to no avail. He always said that it was to be for all of the children. About a month before he died he made his will2 wherein he provided: “The Homestead must not he sold for 20 years. At that time my children will decide how it shall be disposed of.”
Teresa feared that the lawyers would get everything in case of probate proceedings, and she was determined to get the Homestead in their joint names so as she thought to avoid probate proceedings.
Virgil Homer Nelson became seriously ill two weeks before he died, and suffered greatly from pain. A doctor prescribed medicine for his pains, and on Sunday, February 25, they subsided. On Monday following, Teresa secured his signature to a deed which' she had secretly caused to be prepared. Her testimony explains how it was accomplished:
Q. What did you do to get him to sign those papers? First, let me ask you, did you help him sign the papers? Answer that.
A. I helped him sign the papers after that.
Q. When did you do it ?
A. On Monday morning, February 26.
Q. All right, Monday morning. He died the 29th so this would be the last Monday that he lived ?
A. That’s correct.
Q. All right. Now tell us what you did and what happened ?
A. About the deed ?
Q. Yes, about getting, what you did about getting him to sign the deed.
A. I said to him that Monday morning, Paw don’t you think you better sign those grazing papers ? And he said, yes.
Q. Now what was his condition at that time ?
A. All right. At that time he was bedfast. He hadn’t been out of the bed since Sunday about noon.
Q. And what did you observe as to his condition generally at that time on Monday ?
A. He was very, very, very sick. Very. And couldn’t get out of bed.
Q. Did this have anything to do with your talking to him about signing the papers?
*86A. I, his hand was swollen. He, his face was white. And his hands were white. He had stopped eating. He was using the bed pan. Sunday night, a urinal. And very, very weak and I thought Poppa isn’t going to get well. I’ve got to get that deed signed.
% ij/t % sji
A. I stood by the drawer, my secretary drawer where I had that deed and debated. If Paw does get well I may not ever have to show it to him. This is maybe the last chance I’ll ever get to get that deed signed so the homestead won’t have to be probated.
Q. So what did you do ?
A. I took the deed, put it, inserted it between those three sheets of the grazing papers that I knew he wanted to sign. That I had asked him before. I put them in between those three sheets. Then I went to the telephone. I telephoned to my neighbor, Mrs. Georgann Wilson Christenson. I told her on the phone, Mrs. Christenson I have a deed that I would like to have you sign — no, to notarize. Could you come over right away? This is real early in the morning. On Monday morning. When she came over I said, now don’t appear as a notary. Just be a friend. I was afraid that if she was acting as a notary that my husband would catch on. So she came into the bedroom. Said, how are you Brother Nelson? He says, pretty good. She came in and sat down kind of close to the bed. And I said, well Poppa maybe you better sign these papers now. These grazing right papers. I helped him, I put his feet on the floor, helped him to a sitting posture. Sat down by him. With pen in my hand. I had a magazine, a large magazine with the four papers on it. I held it, the first one he could see was a grazing right paper. He signed his name at the bottom where it said signature. He did that himself. He had the pen, I didn’t have to help him do that. Then I turned that paper a little bit, just a little. And he signed his name. I turned that paper over, and he signed his name just a little bit higher. I turned that one over and he signed his name a little bit lower again. I just laid them over there and Mrs. Christenson helped my husband put his feet back on the bed and lay down again. She took the papers out into the living room table. Looked through them, saw the deed. I guess she saw, she took the deed over to a neighbor.
To hide her perfidy she told some of her children that her husband had finally seen the light and had voluntarily signed the deed. On the witness stand she admitted making the false statement.
*87In a memorandum decision the trial judge stated:
When a witness has made false statements, whether or not under oath, it is very difficult for the Court to determine when that witness was or was not telling the truth. .
# ifc * ‡ ‡
Since a fraud of this character must be proved by clear and convincing evidence, the Court finds that the Plaintiff has not sustained this burden of proof, and therefore finds and holds that said joint tenancy deed was not obtained by fraud and was and is valid and binding.
The trial judge seems to have lost sight of the fact that Teresa was a defendant testifying against her own interest in the matter. Besides, when a gift is obtained by one in a superior position from one who depends and relies upon such a person, there arises a presumption that the gift was obtained by fraud, and the burden is upon the donee to rebut that presumption.3 The plaintiff not only proved fraud from the testimony of the defendant herself, but in addition thereto corroborated the fraud by calling Georgina Christenson (now Cot-tam) whose name appears on the deed as the notary who took the acknowledgment of the grantor. Mrs. Cottam testified as follows:
A. She called me early in the morning. I am a director of the Senior Citizens Center in Firmont Park and I go there every morning. I would. And she called me early in the morning before I left to go to the center and asked me if I would come over and notarize her husband’s signature. So I immediately went over and she met me at the door. And she said, he’s in the bedroom. He is ill. And she had the papers to be notarized, and I went in the bedroom. And I said, good morning Brother Nelson. How are you today? And he says, just fine but I’m weak. And she brought the papers in for him to notarize. And she put his feet over on the floor. And had him sitting up. And she took a book and the papers. Now she had a sheaf of papers and one was the deed in with some other papers and the others were something to do with grazing. But I did not read the papers. What was in them. I — he signed them. She turned the papers. He signed each one. I took, she turned and handed them to me. I went in the living room. Signed my name. Put the seal on them.
*88Q. Did Teresa say anything to him immediately before or while he was signing these papers ?
THE COURT: In your presence.
A. In my presence ?
MR. SMOOT: And in your memory.
A. Seems to me that she said something about the grazing papers. As near as I can remember. But all I did was to notarize his signature.
THE COURT: You didn’t put him under oath?
A. No I didn’t put him under oath. No, sir.
Immediately after the funeral of Virgil Homer Nelson the defendant V. Homer Nelson began trying to get his mother, Teresa Nelson, to deed the homestead to him. He and his wife, Earline, had given Teresa a book on how to avoid probate proceedings in the courts. Finally he entered into a uniform real estate contract to purchase the 1700 acres of land for $10,000 payable $10 down, the balance to be paid at the rate of $1,000 per year without interest, the first $1,000 to be paid January 1, 1970, some one and one-half years in the future.
V. Homer Nelson testified that he, his wife, and Teresa signed the contract May 29, 1968. Thereafter and on or about July 18, 1968, Teresa gave a warranty deed covering the Homestead property to V. Homer Nelson and his wife, Earline, with a small tract 150 feet wide reserved to each of the other children.
The court found that $10,000 was a fair price to be paid for the land, although a realtor had testified that it was worth $40,000. Soon after receiving the deed, V. Homer Nelson mortgaged it for $22,000.
Teresa testified that V. Homer knew of the scheme she had practiced to get the deed signed by her husband. I am of the opinion that the deed to V. Homer cannot stand regardless of his complicity in the matter for the reason that his grantor,' Teresa, had no title under the forged deed from her husband.
The law can be found in 11 A.L.R.3d at page 1076, where the editor of an annotation regarding obtaining a signature by artifice or deceit stated:
Where the genuine signature to an instrument has been procured by artifice or deceit, without an intent on the part of the party signing to execute such an instrument, the attitude of the courts has been that the signature thereto should be treated as a forgery.
In my opinion the finding of the trial court should be that Teresa obtained the deed from her husband by fraud and that it is a mere nullity and further that the deed from Teresa to V. Homer Nelson and his wife, Earline, is of no force and effect
*89I would therefore reverse the judgment rendered and award costs to the appellant.
. 55 Utah 384, 186 P. 100 (1919).
. This will failed to comply strictly with the statutory provisions and hence could not be admitted to probate, but it did show what his feelings were about the particular land in question.
. Omega Inv. Co. v. Woolley, et al., 72 Utah 474, 271 P. 797 (1928); In re Swan’s Est., 4 Utah 2d 277, 293 P.2d 682 (1956); Johnson v. Johnson, 9 Utah 2d 40, 337 P.2d 420 (1959).