Clifford v. Latham

Puller, J.

On the facts found at the trial of this action, involving certain Paulk county land, to which the defendant had obtained title, the court declared an involuntary trust thereof in favor of plaintiff, and decreed “that the defendant, D. H. Latham, make, execute, acknowledge, and deliver to the plaintiff herein a good and sufficient special warranty deed, conveying to plaintiff, Edwin C. Clifford, the said northwest quarter of section twenty-six in township one hundred and twenty north, of range sixty seven west of the fifth principal meridian, and that said deed contain covenants against any act done, suffered, or performed by defendant, or any one *377 claiming or to claim under him, the said defendant, Latham.” For the purposes of this appeal from an order granting a new trial, it need only be said that appellant held a tax deed to the premises, and, consistently with the complaint, stated upon the witness stand that he engaged respondent, an attorney at law, to procure for him the outstanding title,- which he afterward obtained for himself. Respondent maintained and testified unequivocally that he never was thus employed, but, on the contrary, was regularly retained to protect the interests of adverse parties by bringing an action to set aside the above-mentioned tax deed and foreclose a certain mortgage, with all of which appellant was perfectly familiar when he made a proposition of settlement that respondent'agreed to submit to his clients for their approval, and which they had refused to accept prior to the procurement of his deed.

It being discretionary to grant or refuse a motion for a new trial based upon the insufficiency of the evidence, the action of the trial court, where the testimony is conflicting, as in this case, must be affirmed on appeal unless there is an abuse of judicial discretion, and none is disclosed by the record before us. It has been thus determined so frequently by this court that reference to the cases is unnecessary, and “a clearer case is required to authorize the reversal of an order granting a motion for a new trial than is required to reverse an order overruling such motion.” Grant v. Grant, 6 S. D. 147, 60 N. W. 748 .

The order appealed from is affirmed.