#### Kehoe, Appellant, vs. Burns and another, Respondents.

*February*21

*March 21, 1893.*

*Conveyance of land: Competency of grantor: Fraud: Evidence.*

A father conveyed aH his real estate to his two daughters in consideration of a covenant by them to support him during hi^ life. In an action by a son to set aside such conveyance, the evidence is *held*to sustain findings by the trial bourt that the father was mentally competent at the time to make such conveyance and that the same was not obtained by any fraudulent or unlawful means.

APPEAL from the Circuit Court for *Columbia*County.

*John If. Kehoe,*the plaintiff, and *Mary Burns*and *Julia Kierncm,*the defendants, together with their brother, Edward Kehoe, are the children and only heirs at law -of Michael Kehoe, who died intestate in April, 1891. About three months before his death, Michael Kehoe executed to his two daughters, *Mrs. Burns*and *Mrs. Kiernan,*a conveyance of all his real estate, in consideration whereof they executed to him a mortgage on the same land to secure the performance by them of a covenant to support and maintain their father during his natural life. The plaintiff brought this action to procure the cancellation of such conveyance, .alleging in his complaint that it was obtained by undue and improper influence exerted by his ,sisters over their father, and that when he executed the same their father was not mentally competent to make a valid conveyance or disposition of his property. These allegations are denied in the answer of defendants. The cause was tried, and the court found from the testimony that when Michael Kehoe executed the conveyance in question he was of sound disposing mind and memory, and physically and mentally able and competent to transact the business in which he was then engaged; that - he freely, voluntarily, and understandingly executed and delivered such convey-*373anee to bis daughters, in consideration of the bond and mortgage executed and delivered, by them to him, conditioned for his support and maintenance; that he was not indebted to the plaintiff; and that no fraud, deceit, misrepresentation, undue influence, or other unlawful means was resorted to by either defendant to obtain such conveyance. On the above findings tl^e circuit court gave judgment for the defendants, dismissing the complaint on the merits, with costs. The plaintiff appeals from the judgment.

Eor the appellant there was a brief by *G. W. Stephens,*attorney, and *If. W. Lander*of counsel, and oral argument by *Mr. Stephens.*

*John S. Maxwell,*for the respondents.

LyoN, 0. J.

No disputed proposition of law is involved in the determination of this case. It presents only the questions of fact, (1) Was Michael Kehoe of sound disposing mind and memory when he executed the conveyance- to his daughters, sought to be canceled and set aside by this action? and (2) Was such conveyance obtained by any fraudulent or unlawful means? A large amount of conflicting testimony, bearing more or less directly on these questions of fact, was introduced on the trial. After hearing such.testimony the learned circuit judge l’eached the‘ conclusion that the plaintiff had failed to prove the cause of action alleged m his complaint, and hence gave-.judgment for the defendants. We have carefully examined the case, and it must be Conceded, we think, that the testimony .on the part of the defendants is sufficient, if -true, to uphold the judgment. The court, whose duty it was to determiné the weight of the testimony, believed it true, and. findings and judgment for defendants were the necessary results* We are unable to say that such findings and judgment are against a clear and satisfactory preponderance of the testimony. Indeed, they are fully supported by much' testi*374mony, the truth of which we perceive no very good reason to doubt. Statement and discussion here of the testimony would be no utility. The case is probably one in which findings' either way could not properly be disturbed by this court on appeal. Certainly there is too much, and too persuasive, testimony in support of the judgment to justify a reversal thereof by this court on the proofs.

*By the*Cov/rt.— Judgment affirmed.