(dissenting).
The majority opinion correctly states the law that a written instrument, here a deed, "speaks the final and entire agreement or contract of the parties" and a "party seeking reformation of a written instrument must prove his case by clear, unequivocal and convincing evidence."
Under our settled and familiar law when the evidence supports the findings, as it does here, and the findings support the conclusions of law and judgment, the judgment must be affirmed. * Because the Court reverses under these circumstances, I part company with the opinion. Applying the familiar rules that findings shall be viewed in the light of evidence to support them and also that "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses," RCP 52(a), SDCL 15-6-52(a), the judgment should be affirmed.
It does not behoove a dissenting judge to set forth the evidence that supports the trial court's decision, yet no support exists for the Court's reference to evidence of the equal division of profits from the 160 acres during the lifetimes of the brothers. Of course they so divided the profits; that was in strict accord with the joint-tenancy deed as it read, not in opposition to it. However that may be, it was for the trial judge to weigh the evidence and for him to give the evidence the value and weight he deemed it merited; that was for him as the fact finder, not for us as a reviewing court. He was justified in concluding some of the evidence of the acts of others than the brothers, i. e., the personal representatives of the deceased brother, his heirs, tax accountants, or Daniel, the survivor when he was from 85 to 90 years old, was *684not clear, unequivocal or convincing enough to overcome the plain wording of the written deed. I therefore cannot agree with what I believe is an intrusion of RCP 52(a) nor with the Court's action which removes the stability of long recorded deeds.
I would affirm.
See, among others, Miller v. Hanson, 68 S.D. 476, 4 N.W.2d 602; Murray v. Jibben, 81 S.D. 359, 135 N.W.2d 227; Rumbolz v. Wipf, 82 S.D. 327, 145 N.W.2d 520; Midwest Oil Co. v. City of Aberdeen, 69 S.D. 343, 10 N.W.2d 701; Cowan v. Dean, 81 S.D. 486, 137 N.W.2d 337.