*1 469 pregnancy prosecutrix to that show of the was caused defendant, some one other constituted than reversible error. point is briefs,

While the not raised we believe we call proffered should attention to the fact that the evidence court, excluded in part consisted of an offer to show had there been trouble between defendant and the prosecutrix objecting keeping because of his her company young with the man mentioned in evidence. Such testi- mony tendency would ill-feeling have part show on her against defendant and to extent would affect her credi- bility should, as a witness and if offered for that purpose, Wilson, Wyo. 37, allowed. State v. 32 52, and authori- ties cited.

For in sustaining the error prosecutor’s objections of proof mentioned, offers above is re- versed and the cause remanded for new trial.

Reversed n and remanded. J., C. J., concur. Blume, Kimball, BROWN v. CITIZENS’ NAT. BANK OF

CHEYENNE, ET AL.

(No. 1381; July 17, 1928; 40) Pac.

J. Mewtzer, P. Busk and W. G. for appellant. *4 Raymond, respondent. for

E. G.

Rinee, Justice. brought action

This an the District Court County Brown, plaintiff Weston Mrs. Grace below and respondent here, quiet to certain title real estate county, and to restrain the sale of said under on a defendant execution issued obtained Wyo- Cheyenne, and Bank appellant, Citizens National ming, against Popham. one John jury, case was court

The tried without judgment quieting plaintiff obtained a title to the land damages. below has $350 in her and for The defendant appeal. For brought case here review direct designated will as parties convenience respondent, respectively. daughter Popham, claims respondent, a John The question by through a deed the real estate title to *5 by 11, executed the to her under of latter date October 1923, and the of 22, recorded October 1923 in office the eounty clerk and ex-officio of deeds of Weston recorder County, Wyoming.

The May 15, 1923, appel- record discloses that on the lant, as plaintiff, in instituted an action the District Court County against of Weston Popham, the said as de- John fendant, sought wherein judgment it was to recover alleged $1311.77 to promissory be due note on attorney’s on account principal, fees, of interest and to- gether Many with costs of action. months after this action had been appellant, started and on December 6, 1923, it sued out a writ and of attachment caused the in controversy lands present the suit to be attached the on date last the property mentioned as the of said Popham. Subsequently John 19, 1924, appel- on March entry judgment lant secured the of a in its favor prayed, action as upon levied the attached proceeded 13, to the advertise sell same on June 1924.

The now suit before us respondent was commenced county day the last June, mentioned on the 9th of purpose 1924. Its quiet respondent’s was to title to the recited, land attached as heretofore and to restrain the proposed appear injunction sale. It not that an does obtained, 13, and on June the date, advertised the question lands in were sold under the secured during preceding, the month of March and appellant be- purchaser came the at said sale. thereof In of present defense it pleaded suit was and is by appellant contended conveyance of this real in October, 1923, estate by Popham respondent during pendency litigation by appellant against Pop- ham, was without consideration and on made part of the latter purpose for the hindering, delaying defeating his creditors collecting their claims and obligations against Appellant him. prayed that title to equity quieted subject only Popbam’s in it, land be tbe respon- Popham from redemption, and that the deed question principal dent The be cancelled and annulled. findings argued for the is whether the parties counsel *6 by the evi- supported of trial are and the court of in a brief review dence the case. This necessitates the made the record on trial. Brown,

Bespondent husband, her Lawrence and O. in her principal were the. witnesses behalf. Summarized in this: from effect transcript, testimony their Was in Popham originally estate involved John owned real Wyoming litigation. this In the summer of he left During September the month of and went to Missouri. correspondence with year, that had some respondent of purchasing land, it was her father to this and relative $1,000 for agreed pay him between them she should paid dollars of this amount was to be it. Three hundred by Popham several cash, in an owed indebtedness years respondent $200 and her husband in the sum of to by they pay them, to were to of back $220 was be released premises purchase taxes on the and the balance of the immediately paid loan, from which price was to be a was by respondent. property $300 for on the The to be asked Popham early in the of in cash sent to form bills 1923, by respondent’s husband an October, envelope, latter’s though registered, and not had the return card post The deed to the office box number thereon. reciting of Was $300 a consideration dated Octo property by respondent days few 11,1923, which was received ber together two other deeds of other date, with after belonging Popham running respondent’s property All sent sister, grantee therein. these deeds were as County office at respondent to the Clerk’s Newcastle but she did not record, pay mail for re registered The for all of them. deed the land here cording fees on the date recorded heretofore recited. involved was About the time the respondent deed was recorded, and her husband made application for a federal farm loan for $1,000 property, ap- $1200 or on the stating a verified plication therefor, upon Secretary the advice of the of Treasurer the Farm Loan Association, that the land $3,200. worth ultimately The loan was not made be- pending cause of this litigation. These transfers prop- of erty by daughter Popham to his property left certain still standing consisting in his forty name acres of land that had been taken him a $1600, on debt of some a small Upton, house and lot in Wyoming, and another lot Respondent husband, that town. her at the time purchase by them in controversy, nothing Popham’s knew about indebtedness to any and were not litigation brought aware of by appel- against Popham They lant to recover thereon. testified purchase good faith, that their was made in and that the land at bought by the time it was was of them the reas- *7 $1,000. onable of Respondent’s value husband testified knowledge further that it was not Upton common in that Popham was trouble the bank with on account of his indebtedness it. County Clerk,

Aside from the recording who testified conveyances the several County mentioned above, and the Assessor, who identified the assessment schedules Pop- of County ham in years Weston 1924, for the 1923 and ap- pellant introduced but witness, Huff, one Frank L. whose testimony was to the Popham’s effect the fact of in- debtedness to the Upton State Bank gen- Citizens was erally in Upton vicinity, known value question land or $2560 $2880. legal

There are several well principles, settled as we case, disposition view this which should control its in this principles frequently court. These have been mentioned opinions. in its

477 Wyo. 233, 219 dis 275, Pac. Willson, 30 v. Edwards thus: rules one of these cusses ' ‘ law where in actions at this court The rule followed not known and it is conflicting testimony is well

there is has been the same rule necessary cases. And to cite the Co., Mercantile Conway v. Smith equity cases. applied 6 Co., 7 v. Hardware Wyo. 1084; 46 Patterson 468; Pac. Min. v. Duchess Wyo. 401, 1085; 52 Pac. Co. Columbia Cheyenne 385; Phelan v. Wyo. 244; Pac. 13 79 Co., Min. 354, 1103; 495; 189 Pac. McFadden Co., Wyo. 26 188 Pac. Brick rule, 401, 213 Pac. 760. The French, Wyo. 29 v . Conway Co., v. Smith Merc. reasons, its is stated with supra, as follows: “ evidence there sufficient question is whether ‘The is court, this findings. is not whether to sustain these from The It evidence, so find. report of the would the written principal witnesses before trial court had most of the judge of opportunity to it, giving that court the better ” credibility.’ their character and Ford, Bank v. in First National applied

Another earlier 691, quoting from an Wyo. where, 216 Pac. 110, opinion, it was said: distinctly clearly alleges must “A man who fraud must clear alleges, proof and the

prove fraud he satisfy and conscience the mind and sufficient existence of fraud.” Lee-Clarke-Andreesen, Wyo. 401, v. in Patterson

And said: 1090,this court has 52 Pac. any impute fraud to us to law not allow “The does which it out of the facts and circumstances

party when honesty and may well consist with supposed is to arise *8 intention.” purity of in Han again quoted approval with language was

This Wyo. 337, 232 Pac. Co., 32 Q. R. Chicago B. & R. v. son 1101. urged appellant’s

It is on Popham, behalf that his property daughters, several transfers of to his rendered pay himself insolvent and unable to the which ultimately in pending rendered the at the time action conveyances is the were made. But the record barren of proof of contrary, appears this. Oh the it after the properties made, Popham transfers pos- were still forty sessed acres of real and a with estate several house Wyoming. lots in Upton, property may What other he have owned in other counties of this not appear state does investigated. been argued have It is that the assess- ment schedules identified the Assessor of Weston County, show that the title to the remaining in Popham’s county name in very was of little value. But merely such evidence was hearsay, and the trial court quite liberty at to utterly disregard it, ap- which it parently did. There seems to be no other in evidence point. record on the suggested

It is improbable that it is $300, that the testi- by respondent fied to her husband as sent in cash to grantor by unregistered mail, was ever sent at all. We accept are not inclined to this view of the matter. The testimony of respondent and her husband stands undis- puted that it was envelope so sent. The in which it was respondent’s sent had return husband’s card thereon. Its loss was, United States’ therefore, mails most un- likely. In view the many straits banking financial year institutions this state and the conse- quent people distrust of them the because of their re- peated failures, it seems not at all surprising to us to people remitting fairly large find even money sums of currency incurring without using the risk of a bank draft, or, indeed, using any agency except whatever plain a with envelope through ordinary return card sent mail- ing channels.

It is for respondent claimed that her and husband were familiar with her father’s indebtedness to pending the bank and litigation regarding the it. But testimony they their is that knowledge prior had no such to or at respondent the time the deed to was There made. testimony is no before us disputes True, ap- which this. pellant’s Popham’s witness Huff stated that indebtedness to the generally bank was in Upton vicinity, known testimony exactly but there is in the oppo- record to the against appellant site effect. The trial court found on thereon, this point, govern- and its decision under the rule ing conflicting testimony the consideration of in this court to which we have referred, should not be disturbed. urged,

It is too, that the record shows that the consid- paid eration for the disproportionate land was its value. point, But on again, this the conflicting, evidence was we cannot, just under the rule mentioned, determine that the trial court reaching error in the it conclusion did. respondent While the deed to recited a considera- only $300, yet tion of it was to, objection testified without contradiction, or that the full and real consideration conveyance the $1,000; the sum of part that that payment amount was the taxes, of back the amount of respondent which immediately borrowed from other parties pay; and attempted to that another payment to up make through amount was to be raised a loan to upon be obtained through the land the Federal Land Bank, and that application such an promptly had been by respondent made and her sugested husband. It as is impeaching their statements as land, to the value of the application this for a loan it was out set that the $3,200. land appears was of the value of But it that this application upon express valuation was inserted the Secretary of the advice and Treasurer of the Farm Loan Association, an necessarily official who must have known requirements proceedings practice of such and the given a state- such The effect therewith.

connection record is disclosed the circumstances under ment that before it is remembered doubtful, especially when must be valuation of the any made, the loan is loan commit- upon reported both investigated and ap- special Farm Loan Association of the tee *10 12 U. making the See S. loan. of the land bank praiser connection, the particular In this 751, 753. A.,C. Secs. was, the issues before the court to query pertinent real compared land, as with of the the actual value What was not have been That fact should paid? the consideration with reasonable ac- establish to ascertain and difficult con- for yet testified curacy, but one witness cerning the matter. may

It conceded that are in be there the record some may perhaps circumstances elements which be de regards suspicious, good nominated faith as of the conveyance respondent, ap to and which tend to sustain theory in pellant’s concerning are not the ease. We clined, however, judgment facts, to substitute our on the find them in the record us, as we disclosed before for regard suspicion proof. of the trial We do not as court. say Upon record, a careful examination of the we cannot proof clear, satisfactory in this case that the of fraud is so convincing require judgment as to us to set aside the court, of the trial saw and heard the for who witnesses parties. say regard part both This we to that of the judgment quiets prem under review1which the title to the controversy respondent. ises in in the remaining judgment portion awarding The of the dam- ages respondent not, think, permitted should we clearly damages stand. The record shows that these were attorney up travelling fees and $250 $100 made ex- by respondent in penses present incurred suit. The action, tried, simply quiet title, as was one and the au- attorney’s travelling establish fees and thorities ex-

481 penses parties litigant, for cannot be awarded under practice damages as our in circumstances as such tbis ease presents Barquin before See us. v. Hall Co., Oil 28 Wyo. 164, 201 352, Pac. 1107; Pac. 17 C. J. Sec. 133 and extended list of cited; Cyc. cases 1380, subdivision 7c and cases cited.

Our conclusion is that tbe should be modi- by striking fied therefrom tbe allowance made therein of damages, modified, and, $350 so should as be affirmed. J.,C. Blume, concurs. Judge, part District concurs in that

Cromer, its opinion modifying judgment, but dissents as to as affirmance modified.

DELFELDER FARMERS’ STATE BANK v. OF

RIVERTON, ET AL.

(No. 1439; July 418) 17, 1928; 269 Pac. *11 (Rehearing 1928) Denied Oct.