Opinion
7 Div. 451.
June 14, 1937. Rehearing Denied June 29, 1937.
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Chas. F. Douglass, of Anniston, for appellant.
Rutherford Lapsley and Longshore Williams, all of Anniston, for appellees.
The bill was for cancellation of mortgage and foreclosure deed for fraud.
The evidence was given orally before the court that rendered judgment and the decree of cancellation is supported by the presumption that obtains. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Casey v. Cooledge and Macuk (Ala.Sup.) 175 So. 557; Andrews v. Grey, 199 Ala. 152, 74 So. 62; Howell v. City of Dothan, ante, p. 158, 174 So. 624; Wood v. Foster, 229 Ala. 430, 157 So. 863.
Ante, p. 499.
The evidence is in conflict; has been carefully examined and supports the decree rendered. It would serve no good purpose to discuss the respective reasonable tendencies of evidence that are widely divergent, and that presented the question of fact for decision of the trial court.
It may not be necessary to say more; however, we observe that it is likewise established that, where the testimony is taken orally before the court, on appeal the presumption is in favor of the finding of the court that is accorded the same weight as the finding of fact by the register (Andrews et al. v. Grey, 199 Ala. 152, 74 So. 62); and such findings have the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong (McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Caples et al. v. Young et al., 206 Ala. 282, 89 So. 460; Gen.Acts 1915, p. 705; Taylor v. Hoffman, 231 Ala. 39, 163 So. 339, and cases there cited and considered and supporting that text. See, also, Patterson v. First National Bank, 229 Ala. 406, 157 So. 446; Peterson v. State, 227 Ala. 361, 150 So. 156; Griswold v. Duke, 224 Ala. 402, 140 So. 427, to like effect.
The judgment of the trial court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.