Campbell v. Turley , 1920 Tex. App. LEXIS 905 ( 1920 )

COBBS, J.

This suit was instituted by appellee to cancel a deed made by her to appellant, Bessie Campbell, for lots Nos. 58 and 59 in block 3129 in South Park, Hunstock addition, city of San Antonio. The case was tried by the court, jury being waived, and, after hearing all the evidence, the court found the facts in .favor. of appellee, and by decree canceled and set aside the deed, and decreed that appellee recover from appel" lants title and possession of the said lots. There was no request made for the court’s findings of fact or conclusions of law. The suit is predicated upon the alleged fraud of appellants in inducing appellee to make a conveyance to put the title in Mrs. Campbell, appellant, upon false represfentations that it was necessary to do so to protect her from its ultimate loss, but to be held in trust by her for benefit of appellee. The petition is very full in the allegations charging fraud; overreaching, and misrepresentations. The appellants answered by exceptions and denials of the alleged fraud and setting up other valuable considerations given prior to and subsequent to the execution of the deed other than expressed therein, and that it was a gift in recognition of such valuable services performed.

It is immaterial what we may think of the testimony, if it is sufficient to support the judgment. In this case the testimony is sufficient to support a judgment either way. The judge who tried this case had all the parties before him, heard fheir testimony, and saw the manner of fheir testifying, and the judge, like a jury, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and could believe or disbelieve the testimony of any one of them. As said in Zucht v. Brooks, 216 S. W. 686:

“The credibility of witnesses and the weight to be given their testimony are matters placed exclusively in the hands of juries, and appellate courts have no authority under the judicial system- of Texas to interfere with that privilege. This is a heritage from the common law, and is preserved in the federal Constitution, and in every state by Constitution or statute.”

The evidence showed no part' of the recited consideration ever paid, and was sufficient to sustain the general judgment of the court on the issues submitted. Therefore no useful purpose can he served by here setting out the facts and discussing them. Velasco Fish & Oyster Co. v. Texas Co., 148 S. W. 1185:

“The rule is well settled that where no conclusions of fact are reguested, or if so reguest-ed no conclusions are filed, the appellate court will impute to the trial court such a finding upon every issue of fapt as will sustain the judgment, if such finding is supported by the evidence. The appellate court will presume that as to every issue raised by the pleadings, if the evidence will support, such finding, every fact necessary to sustain the judgment was found. Fitzhugh v. Land Co., 81 Tex. 814, 16 S. W. 1078. This rule also applies where conclusions are filed in which there is no finding on some material issue.” Railway v. Watson, 157 S. W. 438; W. U. Tel. Co. v. Glenn, 156 S. W. 1116; Tobin v. Benson, 152 S. W. 642.

Appellants' cite no authorities in their, brief, but rely on their two assignments and propositions thereunder, that the testimony is not sufficient to sustain the judgment, and the testimony preponderates in favor of appellants. There were no witnesses introduced on the trial other than the parties to the suit on the issues. They were sharply disputed by each, all of which, as said, were passed upon by the trial court, and found against appellants, and we shall not, for the reasons stated, set aside his findings upon no better showing than made.

The assignments are overruled, and the judgment of the court is affirmed.