Miller v. Miller

This is an appeal by defendant from a decree for plaintiff in an action to quiet title and to compel the execution of a deed of conveyance.

The suit is in equity. Section 8805, Revised Codes of Montana[1] 1935, defining the powers and duties of the Supreme Court on appeals expressly provides that, "In equity cases * * * the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, aswell as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court below be ordered." (Emphasis supplied.)

The plaintiff, Phillip W. Miller, is the son of the defendant, Marie Miller. The suit which the son has here instituted against his mother involves the ownership of 360 acres of farm land in Pondera county, Montana.

The son asserts that he is the owner of the described land. This the mother denies and represents that she is the owner of the real property involved.

The pleadings admit that by deed of conveyance dated June 11, 1935, made and delivered to her and on June 20, 1935, recorded in the office of the county clerk and recorder of Pondera county in Book 15 of Deeds at page 66, the mother acquired title to the described lands. The record shows that at all times since June 20, 1935, the legal title to the land has stood and that it still stands on the records of Pondera county in the name of the mother.

The son's complaint avers and the mother's answer admits that on June 11, 1935, the mother became and "was the owner of said real property."

Under this state of the record the burden rested upon the son[2] to establish by the kind of competent evidence required by express statutes in this state that on or subsequent to June 11, 1935, his mother parted with her title to the described lands. Sec. 10616, Rev. Codes; In re Day's Estate, 119 Mont. 547,177 P.2d 862; Southern Land Co. v. McKenna, 100 Cal. App. 152,280 P. 144; Barras v. Barras, 191 Mich. 473, 158 N.W. 192.

Section 6859, Revised Codes, provides that real property "can[3] be transferred only by operation of law, or by aninstrument in writing subscribed by the party disposing of thesame, or by his agent thereunto authorized by writing." (Emphasis supplied.)

Section 10611, Revised Codes, provides that, "No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust over or power concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance, or other instrument in writing,subscribed by the party creating, granting, assigning,surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing." (Emphasis supplied.)

The son produced at the trial and introduced in evidence as plaintiff's exhibit 1 a certain writing which he asserts is an original quitclaim deed which in his complaint he alleges his mother made and delivered to him "on or about said 11th day of June, 1935," whereby he alleges she "reconveyed said real property to" him.

The exhibit wholly fails to evidence that it was ever "subscribed" by the mother as is required by sections 6859 and 10611, Revised Codes, supra.

At the bottom of the front page of plaintiff's exhibit 1 are two printed dotted lines to accommodate the signature of the person or persons executing the writing. These lines are blank. They contain no signature nor writing nor trace of any signature or writing whatever. There is nothing on or about plaintiff's exhibit 1 that in anywise or manner tends to prove that the mother ever subscribed, executed or delivered the writing. There is nothing about the exhibit to bind the mother.

It is the well settled law of this state that the mother's title to the real property may not be divested without establishing by the kind of evidence which the statutes prescribe that she subscribed, executed and delivered the exhibit on which her son bases his claim of ownership and rests his case.

Subdivision 1 of section 10516, Revised Codes, provides:[4, 5] "There can be no evidence of the contents of awriting, other than the writing itself, except in the following cases:

1. When the original has been lost or destroyed; in which case the proof of loss or destruction must first be made." (Emphasis supplied.) The son claims that his case comes within the exception provided in subdivision 1 of section 10516, supra.

"As a preliminary to the introduction of secondary evidence upon the ground of loss or destruction of the original document, the proponent must establish the former existence of the primary evidence, as well as its loss or destruction." 20 Am. Jur., Evidence, sec. 439, p. 392.

In 32 C.J.S., Evidence, sec. 836, it is said:

"Before a party can be permitted to introduce secondary evidence of the contents of a written instrument, satisfactory proof must be made of the former existence of the instrument, and this necessarily involves proof of its proper execution or genuineness. It must also be shown, where these things are necessary to the taking effect of the instrument, that it was delivered and accepted."

"Where a party seeks to introduce secondary evidence of the contents of documents, and as a foundation for the introduction of such evidence relies on the fact that the original writings have been lost or destroyed * * * he must first establish this fact." Sec. 837 and note 52.

"The burden of proving the facts essential to a proper foundation for the admission of secondary evidence, such as the loss, destruction, or inaccessibility of an original written instrument, ordinarily rests on the party seeking to introduce the evidence." Sec. 838 and note 65.

"The fact of loss or destruction of an instrument preliminary to the admission of secondary evidence of its contents must be shown with reasonable certainty." Sec. 842 and note 7.

Loss or destruction must be clearly established. Incorporated Town of Sallisaw v. Wells, 90 Okla. 78, 216 P. 118.

It is unsafe to accept parol evidence of a writing whose loss is only vaguely accounted for. Clay v. Richardson, Tex. Civ. App., 9 S.W.2d 413, 416.

As the mother's signature is necessary to divest her of her title and as the printed deed form (plaintiff's exhibit 1) does not bear her signature, the son asks an equity court on his own uncorroborated testimony to decree him on such parol evidence to be the owner of the land and to order his mother "to execute and deliver a conveyance of said real property to" him.

The son contends that under the provisions of subdivision 1 of section 10516, supra, he is entitled to introduce parol secondary evidence to establish that his mother had subscribed, made, executed, acknowledged and delivered a deed to him.

The above statute expressly excludes the parol testimony offered by the son to establish his cause of action.

The original writing on which the son relies has not been lost. It is evidence herein. It was produced, in court. It was handed to the court reporter. On it the reporter, with his pen, made an ink notation identifying the writing as plaintiff's exhibit 1. It was exhibited to various witnesses. It was viewed by the district judge.

It has been certified to this court as an original exhibit. It is now before us. It has been photographed. A photostatic copy of the original is incorporated in the transcript on appeal. So, the original writing has not been lost.

Likewise the original writing has not been destroyed. The printed dotted lines whereon a party in executing the instrument would write his name or affix his signature are plainly visible. They are now before this court but these lines bear no signature, no writing, nor do they evidence that the printed form of which they are a part was ever signed, executed or delivered. There is no trace, stain, marking or impression anywhere on the lines or on the exhibit evidencing that the printed form was ever subscribed, executed, or delivered so as to become a deed or effect a transfer of real property.

The printed dotted line whereon a notary public would write his name in taking an acknowledgment to the printed form if it were executed and acknowledged has not been destroyed. It is now before us and plainly visible but it bears no signature, no handwriting, no trace, stain, marking or impression evidencing a notary's signature or other writing. In short, the original writing introduced in evidence and now before this court bears no evidence whatever tending to show that it was ever signed, executed or delivered by the defendant or by anyone else. Clearly the exhibit wholly fails to evidence that it was ever "subscribed" by the defendant as is required by sections 6859 and 10611, Revised Codes of Montana 1935, supra.

The original writing failing to bear the signature of his mother and failing to show a transfer or conveyance of the land by her, the son attempts to supply the deficiencies in the unexecuted printed deed form and to impeach the writing which he placed in evidence by uncorroborated parol testimony supplied wholly by himself. He would have the court lay aside the original writing, being the "best evidence" of whether his mother had conveyed her interest in the land, and substitute therefor parol secondary evidence to establish that the unsigned printed deed form now before us once bore the signature of his mother as well as the signature of a notary public but that both these signatures had in some mysterious manner disappeared leaving only the printed dotted lines whereon he claims they had been placed. Had the original writing been lost or had it been destroyed still the burden of proof would have been upon the plaintiff to prove not only the contents of the deed but also the signatures which he asserts were on it. 38 C.J., sec. 68, p. 276. However, as before stated, the original writing has not been lost and that part thereof where a grantor would subscribe has not been destroyed, hence the son does not bring himself within the exceptions specified in subdivision 1 of Section 10516, Revised Codes, supra, and the law does not permit the son, to serve his purposes and by parol, to place signatures on the writing where none now appear. Sec. 10516, Rev. Codes.

Forms of printed deeds can be purchased three for a dime almost any place. However such blank forms cannot serve to divest one of the title to his real estate until and unless the form has been filled out and executed by the land owner, which execution includes all the acts which are necessary to give effect thereto including delivery. The writing must have been "subscribed by the party" to be charged, secs. 6859 and 10611, Rev. Codes, or it is no deed at all. In plaintiff's exhibit 1 we have a writing but we have no deed. It bears no evidence of having been "subscribed" by defendant. It therefore is not binding upon her.

The Son's Testimony. At the trial plaintiff testified: That in June 1935 he was the owner of the described 360 acres of land; that it was then worth seven dollars an acre; that it was encumbered by a real estate mortgage to the Federal Land Bank of Spokane on which there was then owing a balance of approximately $3,000; that he also owed various sums to other creditors; that in June 1935 he made and executed a deed to his mother conveying the land to her "because a creditor was going to attach me and tie me up" and that shortly thereafter his mother reconveyed the land to him by signing, acknowledging and delivering to him plaintiff's exhibit 1.

He testified: "We just agreed on that I give her a deed and she give me one back to carry in my pocket. I gave her hers first and we had it around home. When she put hers on record, mine came in. I had my deed made. * * * I took it [plaintiff's exhibit 1] home with me and we had it around home for awhile"; that he kept it in the house for "a week or so" and that he then placed said exhibit 1 in a tin coffee can and buried it in a deep post hole which he dug in the earth floor of a small shed on his mother's farm; that the exhibit remained so buried for nine years, at the end of which time, in June 1944, the son dug it up.

Relative to the then condition of the exhibit the son testified: "To tell you the truth, it was just practically ruined so far as I could see. I was very scared. It is getting worse with age. Every time somebody handles it they knock off some more"; that thereafter the son "wanted a deed with the same description in it, contained in Exhibit `1'" and that he asked his mother for such a deed. He testified: "She promised to give me a deed the next time she went to town, when I asked her, and she never. Well, she stalled for three weeks before she said no, and she went to see Mr. Doyle, and never give me a deed after that."

In a deposition taken in February 1945 the plaintiff testified: "Question: Your mother at that time was claiming to be the owner of the wheat that was raised on this land? Answer: She never claimed any wheat that was raised off the land. The only thing she got off this land under this complaint was checks; she got all the money; I never got any money."

At the trial the son further testified:

"Q. This land has been assessed in the name of your mother all the time, has it not? A. Since 1935, yes.

"Q. Did you ever ask the assessor to assess it to you? A. No, but I tried to pay the taxes.

"Q. Answer the question? A. Yes.

"Q. When did you ask the assessor to assess it to you? A. This spring.

"Q. In 1946? A. Sure.

"Q. But never before that? A. No."

The Mother's Testimony. At the trial the mother testified: That she and her family, consisting of her husband and four children, resided on a 160 acre farm in what is now Pondera county; that in 1917 her husband died and that she inherited his said farm; that at the time of his father's death the plaintiff was 12 years old; that after the father's death the mother continued to live upon said farm until October 1944, when, because of differences arising with her son, the plaintiff, she was forced to leave her home; that she then removed to Great Falls where she is employed to do the cooking and housework in the home of the Hon. Charles N. Pray, federal district judge; that in 1935 her son made, executed and delivered to her a deed conveying to her the land in question, at which time he advised her that he didn't want the heavily encumbered land because it then was not worth anything and he wanted to buy an automobile.

The mother also testified that in 1942 during World War II and to avoid being drafted into the army the son requested his mother to convey to him all her land, including that inherited from her husband as well as that conveyed to her by the deed of June 11, 1935, so that he would have sufficient farm land on which to claim exemption from military service, but that instead of transferring her land to him the mother appeared before the draft board in behalf of her son and obtained his deferment from military service.

The mother further testified that at no time did she request her son to give her a deed to the land to protect him from his creditors or from the sheriff and that at no time did she promise or say anything about reconveying the land to him and that at no time did she execute a deed conveying the described land to her son. The mother testified that she has paid the semi-annual installments of $170 each on the Federal Land Bank mortgage on the land as same became due and that such indebtedness has been paid up currently. She further testified:

"Q. Prior to June 11, 1935, how was the land handled in regard to farming it? A. We both worked. I worked outside too; run the tractor.

"Q. You say that, — you mean yourself and Phillip? A. Yes sir.

"Q. What work did you do? A. I run the tractor.

"Q. And did the house work too? A. Oh, yes, and I raised turkeys too.

"Q. Subsequent to 1935, or after June 11, 1935, how was it handled? A. It was the same, only I raised turkeys two years after that. 1936 was the last year I raised turkeys.

"Q. You and Phillip went ahead and did the farming? A. Yes, and we had plenty of hired help after that.

"Q. Who ordinarily made the payments on the Federal Land Bank mortgage on the land in question? A. Well, I did."

Uncertain and Unsatisfactory Testimony. In his complaint filed November 8, 1944, the son swears that on June 11, 1935, he made and delivered the quitclaim deed to his mother and that on the same date, to-wit, "on or about said 11th day of June, 1935, and after making and delivering said last mentioned Quit Claim Deed" the mother made and delivered a deed, in writing, of said property whereby she reconveyed said property to him.

In a deposition taken February 19, 1945, before Mr. Pelletier, the court reporter, the son testified:

"Question: Now, in your complaint you say your mother gave you a deed back to the land on or about June 11, 1935, is that correct? Answer: Yes.

"Question: What was the date of that deed? Answer: I imagine the same date. It is the same date, I guess. I wouldn't swear to it, I don't know exactly.

"Question: Which deed was made first? Answer: The one I gave her, Mrs. Miller.

"Question: How soon after that did she give you a deed? Answer: The same day, I guess.

"Question: Was it all done at the same time? Answer: Yes."

In his deposition of February 19, 1935, the son also testified that the alleged deed [plaintiff's exhibit 1] from his mother was acknowledged before a woman notary public, the deposition reading:

"Question: Was it done before a Notary Public? Answer: Yes.

"Question: Who? Answer: The Notary Public?

"Question: Yes? Answer: Mrs. Hullinger.

"Question: Where? Answer: In Conrad here.

"Question: But whereabouts in Conrad? Answer: In his office.

"Question: Did you say Mrs. Hullinger or Mr. Hullinger? Answer: Mrs.

"Question: In whose office? Answer: Mr. Hullinger's office.

"Question: Who acknowledged the deed? Answer: What do you mean by acknowledging the deed?

"Question: What Notary Public put the seal on the deeds? Answer: Mrs. Hullinger."

In a deposition taken before the trial Attorney Henry H. Hullinger, a witness for plaintiff, testified:

"Q. Mr. Hullinger, your wife was never a Notary Public was she? A. She was not."

On further examination Attorney Hullinger testified:

"Q. Mr. Hullinger, during the month of June 1935 Mrs. Hullinger, your wife, was occasionally in your office, was she not? A. Not at the time I was County Attorney. She was not in the office unless she happened to drop in because I had a permanent stenographer.

"Q. But she might have dropped in to your office and been in your office? A. Oh, certainly, sir.

"Q. Who was your stenographer at that time? A. I was trying to think of that, Mr. Doyle. I had Daisy Wolverton first. While she was gone Irene Fogelsong was my stenographer, then I had the Smith girl, or Sarah Margaret Little, I don't know which."

The alleged quitclaim deed being plaintiff's exhibit 1 purports to have been "Made the 20th day of June in the year of our Lord one thousand nine hundred and thirty-five," being a date nine days later than is given in plaintiff's complaint of November 8, 1944, and in his deposition of February 19, 1945.

At the trial, occurring on April 29, 1946, the plaintiff, on his direct examination changed his testimony to conform to the date of his exhibit 1, testifying:

"Q. Did your mother sign Plaintiff's Exhibit `1' on the twentieth of June, 1935? A. Yes.

"Q. That was done in Mr. Hullinger's office, was it? A. Yes sir.

"Q. Here in Conrad? A. Yes sir.

"Q. Did you see the signature on it? A. Sure.

"Q. And it was the signature of your mother? A. Yes sir.

"Q. Did the deed, this plaintiff's Exhibit `1', contain a correct description of the land involved in this action? A. Yes.

"Q. Was the deed acknowledged by a Notary Public? A. Yes sir.

"Q. Who was the Notary Public that acknowledged? A. Homer H. Hullinger."

Again the son changed his testimony. In his deposition of February 19, 1945, he testified that a woman took his mother's acknowledgment to the alleged deed and that such woman was Mrs. Hullinger. At the trial the son testified that Homer H. Hullinger, a man, took his mother's acknowledgment to the alleged deed. Thus did the son change his testimony after the taking of the deposition of Henry H. Hullinger disclosing the fact that Mrs. Hullinger never had a notary's commission.

The testimony of Attorney Hullinger relative to plaintiff's exhibit 1 is most uncertain and indefinite. In his deposition he testified:

"Q. Did Mrs. Miller employ you to do work for her? A. I have no recollection of it.

"Q. The deeds, or this deed, that you have just testified about. Do you remember who employed you, whether it was Phillip Miller or his mother? A. As I remember it, Mr. Doyle, it was Mr. Miller who came in to the office relative to deeds. I will admit that my recollection is hazy on the proposition, but that is the way I remember the occurrence."

Again:

"Q. Have you any recollection at all of ever having drawn a deed made by Marie Miller? A. Frankly, all I can remember is that Mr. Miller had me prepare some deeds, deed or deeds. I cannot definitely state how many. I remember he was in to have me prepare a deed or deeds to real property.

"Q. Was Mrs. Miller, the defendant in this action, in your office about that time? A. Definitely I cannot place the time when she was in my office. She was in my office on several occasions during the time I practiced law in Conrad.

"Q. Have you any recollection that she ever signed any deedsor other instruments before you? A. I cannot say positivelythat I have."

The plaintiff admitted that at the time he claims to have buried exhibit 1 (June 1935) he then was doing business with a bank and that he had a safety deposit box. Relative to burying the exhibit plaintiff testified: "I buried it so nobody would know where it was." Again: "We had a safety box but somebody mightget it there, and I was driving a car and I might get killed or something, and that is the same as a will."

The principal object of the statute of frauds is to prevent[6] the establishment or divestation of legal or equitable titles to land by the introduction of uncertain and unreliable testimony. 37 C.J.S., Frauds, Statute of, sec. 68. For this reason, even when a writing has actually been lost or destroyed, the law requires clear and convincing proof of its execution, delivery and loss or destruction before it will admit secondary evidence of its contents, the statute requiring that "proof of loss or destruction must first be made." Subdiv. 1 of sec. 10516, Rev. Codes.

"The evidence of the former existence, execution, delivery, loss, and contents of a lost instrument should be clear and convincing. The unsupported parol evidence of one person has been held insufficient to prove a lost instrument." 38 C.J., sec. 71, p. 279; see also Capell v. Fagan, 30 Mont. 507, 77 P. 55, 2 Ann. Cas. 37; St. Martin State Bank v. Steffes, 88 Mont. 85,290 P. 259; Wilson v. Davis, 110 Mont. 356, 103 P.2d 149.

To prevail in this action the burden was upon the plaintiff to establish by clear and convincing proof that his mother made, executed and delivered a deed in writing conveying to him the particular 360 acres of land here involved.

The question is not whether the mother had the opportunity or whether she could have subscribed, acknowledged and delivered a deed to the property, but it is whether she actually did subscribe, acknowledge and deliver the deed form which plaintiff introduced in evidence as his exhibit 1.

The son testified, "my mother signed it." This the mother denies. To prove his case the son had the writing marked for identification as his exhibit 1 and then introduced same in evidence. The exhibit lies on the table before us as we write this opinion. We find the printed lines provided to accommodate the signatures of the grantor and of the notary public. There are no signatures on the lines. The exhibit supplies no evidence whatever that there was ever at any time any writing on said lines. The lines are blank. Thus instead of corroborating plaintiff, his exhibit 1 confirms the testimony of the defendant that she did not subscribe her name to the instrument as is required by sections 6859 and 10611, Revised Codes, and there is a failure of proof to establish that the exhibit ever became a deed or that it was ever subscribed by the mother or that she was or is in any wise or manner bound thereby.

The writing having been produced and being now before the court as an exhibit, there can be no evidence that it was subscribed by the mother "other than the writing itself." Sec. 10516. Under the facts of this case and the law applicable thereto the son is denied the right to place his mother's signature on the exhibit by parol. Neither may her title be divested by parol. This the statute of frauds forbids. It is well settled that title to realty may not rest in parol. Vobless v. Weisenthal, 293 Mich. 565, 292 N.W. 493. Plaintiff's exhibit clearly shows that it is partly printed and partly typewritten. The printing has not faded so as to become illegible — the typewriting has not vanished.

The plaintiff has introduced no evidence whatever to show what mysterious process would have removed the alleged signatures of his mother and the notary from the exhibit without similarly affecting the printing and typewriting thereon.

Furthermore, if the exhibit had been acknowledged and a notary seal had been placed thereon, would not the seal have made depressions in the paper where the various raised letters on the seal pressed in? We find no such depressions on the exhibit.

In June 1935 when the land was conveyed to the mother it had but little value, being worth but seven dollars per acre or an aggregate of $2,520, according to the son's testimony. There was an outstanding mortgage on which approximately $3,000 was then owing so that, according to the record, the land then was not worth the amount of the mortgage against it. These were the conditions when the son permitted his mother to take over the land and assume the payment of the installments on the mortgage indebtedness, on of such installments falling due every six months.

Since 1935 the record legal title to the land has stood continuously in the name of the mother — the property has been assessed to her — she has paid the taxes and in addition she has paid $340 annually on the mortgage, such payments totaling considerably more than the $3,000 principal owing at the time she acquired title to the land.

In the complaint which he filed on November 8, 1944, seeking to divest the title of his mother, the son alleged that he "has, on numerous occasions, requested said defendant to reconvey said real property to the plaintiff, and on or about the 8th day of November, 1944, the plaintiff presented to the defendant a form of Quit Claim Deed, in writing, containing a grant of said real property from said defendant to the said plaintiff, and demanded that the defendant execute the same and have the same acknowledged before a Notary Public at the expense of the plaintiff, but the defendant has refused and still refuses to reconvey the said property to the plaintiff."

The form of quitclaim deed which the son alleges he presented to his mother on November 8, 1944, and which he alleges she refused to sign could not effect the transfer of her title for the simple reason that the form was not executed or delivered by her. The deed form on which plaintiff relies to establish his title to the land in question and which he introduced in evidence as his exhibit 1, and which he claims he kept buried in a tin coffee can deposited at the bottom of a post hole for a period of nine years, wholly fails to evidence that it was ever executed by the mother. The exhibit no more establishes a transfer of title than did the blank deed form presented to the mother for her signature on the day this action was commenced. Plaintiff's exhibit 1 acquired no additional force, virtue or evidentiary value because of its mistreatment by plaintiff or because he kept it in the dark and hidden in a hole in the ground for some nine years.

In Barcroft v. Livacich, 35 Cal. App. 2d 710, 96 P.2d 951,957, it is said: "The rule of law regarding sufficiency of evidence to establish the contents of a lost instrument is well stated in the case of Caine v. Briscoe, 78 Cal. App. 660,248 P. 774, 777, where the court comments on `placing sole reliance, for the support of an important issue, upon the frailties, or, as truly may be said, the treachery of human memory, the burden of proving the fact necessarily carries with it more than the usual measure of responsibility'. Also in Deacon v. Bryans, 88 Cal. App. 322, 263 P. 371, it was held that the evidence must show without reasonable doubt the substantial parts of the instrument and that the testimony of the witness need not be accepted as true, merely because there is no direct evidence to contradict it, as evidence may, within itself, bear the earmarks of falsity."

In Harrison v. Riddell, 64 Mont. 466, 210 P. 460, 464, this[7] court said: "The evidence being all before us, we are authorized in equity to make independent findings of fact, respecting the rights of the parties overlooked by the trial court, and to direct entry of a proper judgment. [Citing several Montana cases.] We have carefully weighed and viewed all the evidence, and do not consider that the findings as made by the district court are warranted." See also Barnard Realty Co. v. City of Butte, 55 Mont. 384, 177 P. 402; Lowry v. Carrier,55 Mont. 392, 177 P. 756; Dahl v. Cayias, 110 Utah 398, 174 P.2d 430; Green v. Palfreyman, 109 Utah 291, 166 P.2d 215.

It was to prevent exactly what has happened in this case that there was enacted in England in the year 1677 an Act entitled, "An Act for Prevention of Frauds and Perjuries" (Statute 29, Charles II, Chapter 3), commonly termed the "Statute of Frauds." So it is that in this state there are various provisions of the substantive law patterned after and enacted to accomplish the same purpose, among which are sections 6859, 10611 and 10516, Revised Codes of Montana 1935.

After careful consideration of the record and the briefs of counsel, supplemented by considerable independent research, we are unable to reach any other conclusion than that respondent has failed to sustain the burden imposed upon him by law in a case of this character and that there has been a failure of proof herein. Accordingly the decree is reversed, the cause ordered dismissed, and costs taxed against respondent.

Mr. Justice Choate concurs.