¶1 dissenting:
¶2 Judge Fox and I respectfully dissent for reasons that could be stated at length, but we believe may be sufficiently covered by saying that we think the trial chancellor in this instance where both the credibility of witnesses and the weight to be accorded to conflicting testimony are the determinative elements, should be regarded as the final judge.
¶3 We think the majority mistakenly viewed this contro *735 versy as representing “clearly and strictly antagonistic claimants of title to a tract of land.” Croft was not mainly interested in the land. Neither was .LaFollette. It was the oil and gas subject to the lease then in effect in a territory being quickly developed that absorbed the interest of both. Equity regards the substance rather than the form. That seems quite obvious.
¶4 From a practical standpoint, to have jeopardized the binding effect of the lease to Pure Oil Company would likely have been costly to both of them. Confirmation of the lease under the circumstances left them nothing of considerable value over which to negotiate except the royalty. Croft testified that LaFollette showed him a recorded lease, but did not reveal to him the fact that the royalty was increased by an unrecorded supplemental paper that by its terms was expressly made a part of the lease. The majority opinion takes the position that Croft and LaFollette were dealing at arm’s length and therefore LaFollette was under no duty to disclose fully. We do not understand that that was the theory upon which LaFollette submitted his case. To the contrary, his principal contention was that when the compromise agreement was entered into, Croft was fully informed as to the actual amount of royalty, or that shortly thereafter he became so informed by reason of a division order sent to LaFollette and him, stating plainly that the lease provided for a one-fourth royalty. As we read this testimony, LaFollette’s defense was based upon the theory that Croft knew of the supplemental agreement when the compromise agreement was executed in 1919, or shortly thereafter acquired that knowledge, and due to his asquiescence since then is now estopped. Under these circumstances, and with this conflict, we believe the trial chancellor was amply justified in his finding of fact. LaFollette nowhere admits his failure to fully disclose and contends that that course of conduct was justified by the fact that he and Croft were dealing at arm’s length.
¶5 Nor do we agree that it is the duty of this Court to weigh the evidence in a chancery cause in the manner *736 indicated by the third point of the syllabus, but we think the finding of fact must be clearly wrong in order to warrant disturbing it upon appeal. The second point of the syllabus in the case of Purcell v. Robertson, 122 W. Va. 287, 8 S. E. (2d) 381, reads as follows: “While an appellate court is reluctant to disturb a finding of fact of a trial chancellor on conflicting evidence, such finding will be reversed where it clearly appears to be against the weight and preponderance of the evidence.” The majority opinion speaks of this cause having been submitted “on this stalemate in their testimony.” Croft and LaFollette were the only material witnesses concerning the negotiations, so that if their statements under oath amounted to a draw, there was no clear preponderance, and the trial chancellor’s decree should have been affirmed, according to the plain statements of this Court, readily accessible in the following cases: Smith v. Yoke, 27 W. Va. 639; Wolfe v. Second Natl. Bank of Parkersburg, 54 W. Va. 689, 47 S. E. 243; McCraw v. Bower, 62 W. Va. 417, 59 S. E. 175; Matney v. Blakely, 97 W. Va. 291, 124 S. E. 918; Straton v. Aldridge, 121 W. Va. 691, 6 S. E. (2d) 222; Buskirk v. Bankers Finance Corp., 121 W. Va. 361, 3 S. E. (2d) 450; Wm. C. Atwater & Company, Inc. v. Fall River, etc., Co., 119 W. Va. 549, 195 S. E. 99; Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. 854; Weaver v. Akin, 48 W. Va. 456, 37 S. E. 600.