reason of such relation, obtained some property belonging to the beneficiary, or where in some transaction with the beneficiary the trustee has obtained property from such beneficiary by means of some alleged concealment or misrepresentation, then in all such cases the one who has obtained such property, or any interest therein, must not only show that he acted in the utmost good faith in obtaining it, but must go further and show that he has not reaped an advantage or benefit by the transaction. The rule, however, does not go to this extent where a physician deals with his patient in case where a sale of property is involved. The physician must, no doubt, overcome the presumptions that arise by virtue of the relation; but, when he has overcome those, he need not also show that the property he has purchased from the patient is precisely of the value that was paid for it. Even a physician may exercise his own judgment in dealing with his patient, if the transfer is otherwise fair, and the relation is not abused. In this case the trial judge, whom we know to be conscientious and upright, was evidently not willing to place the value of the property at a figure greatly in excess of what respondents agreed to pay therefor, as is disclosed by his findings. He simply found: "That a fair cash value of said property at the time of said conveyance was somewhat in excess of the consideration paid therefor. That there was no such an inadequacy of consideration as to enable the court to grant plaintiffs any relief on that ground." If the court had found the property to be of some definite value, and from the amount so found it would appear that the consideration paid was so far below the real value as to indicate that such difference was not a mere error or difference of judgment with regard to values, I could then say with some degree of certainty that there was something which operated upon Peterson's mind, either real or imaginary, which induced him to part with his property, and that respondents thereby obtained an advantage which in good conscience they ought not to retain in view of the relationship existing between them and Peterson at the time; but, even then, Peterson would be required to place the respondents in statu quo. The trial court was not prepared to base such a finding upon the evidence, and he was in a much better position to judge of the weight to be given to the evidence than I am. I am clearly of the opinion therefore that the trial court should find the value of the property, and not leave it for us to hazard a guess upon it. Those in anothon font of the case upon which, however, the trial court made no finding. After the action was commenced, the appellants and respondents seemed to have arrived at some understanding with respect to the controversy, and appellants then signed the paper referred to in the prevailing opinion. The circumstances under which this paper was signed were shown by at least three disinterested witnesses from whose testimony the conclusion is certainly well founded that there was neither influence nor coercion of any kind practiced by respondents at that time. Neither is it claimed that the relation of physician and patient between Peterson and respondents existed at that time. The effect of this transaction between the parties could well be considered as an affirmation of the transfer by Peterson. It is true that the Petersons claim that the transfer was based upon the promise of respondents that they would reconvey the property. The court, upon ample evidence, however, was justified in not believing these claims. Here again Peterson went contrary to the advice of his counsel, who was a lawyer other than the one who advised him in the principal transaction. My brethren seem to think that Peterson's disregard of this attorney's advice was caused by respondent's influence over him. I confess I can find no evidence or circumstance from which this inference may logically be drawn. Upon the other hand, it seems to me to be a strong inference that what respondents and their witnesses said about the transaction is in the main true, and that Peterson thought so himself. For the reasons therefore that the court erred in finding that the relation of physician and patient did not exist, and that the court, to some extent at least, may thereby have been induced to find for respondents, I think the case should be reversed. I have arrrived at this conclusion with less reluc tance because it appears from the record that respondents were deprived of the opportunity at the trial of fully crossexamining Mr. Peterson upon the merits of the controversy, and that counsel for Peterson was likewise deprived of Peterson's assistance and counsel during a large part of the trial. I am of the opinion therefore that the judgment should be reversed, and the cause remanded for a new trial, upon which full findings should be made based upon the theory that the relation of physician and patient did exist at and immediately prior to the time of the transaction. INDEX. ABORTION. 1. EVIDENCE. Evidence held not inconsistent with the abortion 2. SAME-SUFFICIENCY. Evidence held insufficient to show an abor- ACTION. GROUNDS AND CONDITIONS PRECEDENT. A judgment debtor may legally ADVERSE POSSESSION. 1. NATURE AND REQUISITES-ACQUISITION OF RIGHTS. Under Comp. 2. SAME-TITLE-HOW ACQUIRED. Title by adverse possession can- 528. 3. SAME. An owner who had not acquired title by adverse posses- 4. SAME HOSTILE CHARACTER OF POSSESSION. A mere passive pos- 5. SAME USE. The use of land for the purpose that an owner 6. SAME PAYMENT OF TAXES. A railroad company held not to 7. SAME-PLEADING-EVIDENCE-TRIAL AND REVIEW. Evidence in an action on a covenant of warranty, considered, and held to warrant the finding of the trial court that a corporation had acquired title by adverse possession or prescription to a part of the land conveyed under the covenant of warranty. Pioneer Investment Co. v. Board of Education, 1. APPEAL AND ERROR. 1. CONSTRUCTION OF STATUTES. Statutes giving the right to appeal are to be liberally construed. Price v. Western Loan & Savings ..Co., 379. 2. FORM OF REMEDY. Coparties desiring relief against each other on appeal should present their matters by cross-appeal. San Pedro, L. A. & S. L. R. Co. v. Board of Education, 13. 3. DECISIONS REVIEWABLE. -An order dismissing garnishment proceedings held a final appealable order within Constitution, article 8, section 9, and Comp. Laws 1907, section 3113. Bristol v. Brent, 213. 4. SAME TEST. The test of the finality of a judgment for purposes of appeal is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judgment. Bristol v. Brent, 213. 5. ISSUES AND QUESTIONS IN LOWER COURT. The theory of the assumed and acted upon by the parties below, must be adhered to on appeal. Aaron v. Holmes, 49. 6. OBJECTIONS AND MOTIONS. Objections that a complaint does not state a cause of action may be urged for the first time on appeal. Aaron v. Holmes, 49. 7. ADMISSIONS. Plaintiff held not entitled on appeal to withdraw his written admission below that defendant's default was excusable. Aaron v. Holmes, 49. 8. MISCONDUCT OF COUNSEL. A party to avail himself of the misconduct of opposing counsel in the argument of the case, held required to interpose objections at the time. Johnson v. Union Pac. R. Co., 285. 9. SAME TIME FOR Under Comp. Laws 1907, section 3301, the time for appeal begins to run from the disposition of the motion for new trial; and, where notice of appeal was filed more than six months after judgment, and no motion for new trial was incorporated in the bill of exceptions, the appeal was not taken within the required time. Warnock Insurance Agency v. Peterson Real Estate Inv. Co., 542. 10. SAME-ERROR IN RECORD. Under Comp. Laws 1907, section 3319, an appeal will not be dismissed merely because the undertaking on appeal erroneously states the date of entry of the judgment appealed from. Price v. Western Loan & Savings Co., 379. 11. NOTICE-MISTAKE IN. Where respondent was not misled nor prejudiced by the mistake in the notice of appeal of the insertion |