#### SHEHEE et al. v. SMITH.

No. 5524.

Court of Appeal of Louisiana. Second Circuit.

Oct. 29, 1937.

L. F. Grigsby, of Minden, and A. B. Parker, of Monroe, for appellants.

John T. Campbell, of Minden, for ap-pellee.

HAMITER, Judge.

A cash deed dated December 14,1935, was executed by*plaintiffs in favor of defendant covering all of their rights, title, and interest in and to a certain tract of land located in Webster parish, La. Through this proceeding, said grantors seek to set aside and annul that instrument, and in their petition they allege that it was obtained through misrepresentation and fraud practiced by defendant Harold W. Smith and by his father, W. B. Smith.

The sufficiency of the petition was questioned by defendant through exceptions of no cause and no right of action. These were overruled.

An answer was later filed in which the charges of the complaining parties were generally denied.

A trial of the merits of the case resulted in a judgment for defendant. Plaintiffs prosecuted this appeal.

The exceptions of no cause and no right of action have not been urged in this court, and we shall give them no consideration.

The record presents only a question of fact, and by reason of this no lengthy discussion of the case will be given in this opinion, for it would be of no benefit to any one. We have carefully and thoroughly studied all of the testimony and other evidence in the transcript, and we arise from that consideration with the conviction that the judgment rejecting plaintiff’s demands cannot be disturbed by us.

• The testimony of plaintiffs and of the other persons appearing in their behalf is to the effect that the act of conveyance was executed by the vendors because of the representation that it- was merely a power of attorney granting authority to defendant and his father to recover various property interests for them. During the course of the trial, however, these witnesses admitted that certain funds were paid to plaintiffs by defendant shortly after the execution of the deed. They referred to this money as Christmas presents, although the total amount thereof appears to have been commensurate with the value of plaintiffs’ interest in the land in question.

With reference to the defense, we find much positive evidence in the record tending to show that all parties litigant were thoroughly aware that the transaction was intended to be and was a sale; that nothing was ever said during the negotiations about a power of attorney; and that a negligible amount of property was involved, for which adequate consideration was paid plaintiffs.

 The jurisprudence of this and other states adheres to the doctrine that fraud is never presumed and that the burden of proving it devolves upon the litigant making charges of that character. Garnier et al. v. Ætna Insurance Co., 181 La. 426, 159 So. 705; 27 Corpus juris, verbo, “Fraud,” § 170. Another principle of law which has been often enunciated is that on questions of fact involving the credibility of witnesses the trial judge’s finding is entitled to great weight and should not be disturbed unless clearly erroneous. Thomas v. Harman (La.App.) 170 So. 365.

The district judge in a well-prepared written opinion ably and thoroughly analyzed the testimony of the various witnesses, and *124gave a splendid discussion of the entire proceeding. Toward the latter part of his opinion, he correctly said, “The only question is whether or not the plaintiffs have made out the case of misrepresentation and fraudulent practice of W. B. Smith and Harold Smith,” and he then concluded that plaintiffs had not proved their accusations by a preponderance of the evidence.

No manifest error appears in the judgment appealed from, and it is affirmed, with costs.