v. St. Joseph's Hosp. & San. of the Sisters of Mercy, Cal. (48 Pac. Rep. 68). A grantor in a deed is entitled to have it cancelled, as against the grantee, who has obtained possession of it without his consent. Rice v. Hall, Ky.

(42 S. W. Rep. 99). A conveyance of land by parents to their daughter for a consideration approximating half its value and a further agreement to support them, will not be set aside where the evidence does not show the incapacity of the grantors or any fraud or undue influence exercised by the grantee. Hemstreet v. Wheeler, 100 Ia. 282 (69 N. W. Rep. 518). A conveyance from a mother to her son, in consid eration of paying her debts and giving her support, no fraud or undue influence in its execution being shown, will not be set aside simply because it proved a bad bargain for her and the son failed to carry out his obligation in good faith. Wheatley v. Wheatley, 102 Ia. 737 (70 N. W. Rep. 689).

Sec. 184. Deed procured by fraud and undue influence-Recovery of damages by grantor's heirs in lieu of cancellation. Where, in an action by heirs for the cancellation of a deed made by their ancestor, on account of its having been procured by fraud and undue influence, they cannot have the relief prayed for because of the intervention of the rights of a bona fide purchaser, equity may award them damages to the extent they have been injured by the wrongful acts of the original fraudulent grantees. Cole v. Getzinger, 96 Wis. 559 (71 N. W. Rep. 75). The court say: "The remedy remaining to the plaintiffs is, therefore, for damages or compensation, to be adjudged in money, for that of which they have been deprived, as heirs at law of their ancestor, by fraud and undue influence practiced on such ancestor. The land was not converted by the voluntary and lawful consent of their ancestor into money, but still remained to him, in equity, in its character and quality of real estate; but the trust that otherwise would have attached to the land in his favor and in favor of the plaintiffs as his heirs at law, upon his death, was displaced by the further wrongful acts of these parties, namely, the causing of the title to become vested in a bona fide purchaser for value, so that the only relief that can be given under these circumstances is to charge them with

the value of the land, or interest therein of which they have been thus deprived, by way of compensation. It appears to be well settled that where a court of equity obtains jurisdiction for the purpose of granting some distinctive equitable relief, such as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appears. from the facts disclosed at the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become impracticable, and the plaintiff is entitled to the only alternate relief possible,—of damages,—the court may, and generally will, instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages (1 Pom. Eq. Jur., § 237); especially since, by the Code, the distinction between courts of law and courts of equity has been abolished. Hall v. Delaplaine, 5 Wis. 206, 213, (68 Am. Dec. 57); Tenney v. Bank, 20 Wis. 161, 173; Hopkins v. Gilman, 22 Wis. 454, 458; Combs v. Scott, 76 Wis. 672 (45 N. W. Rep. 532); Van Rensselaer v. Van Rensselaer, 113 N. Y. 208 (21 N. E. Rep. 75)."

Sec. 185.

Cancellation of deed on account of grantor's mental incapacity. A grantor in a deed is presumed to be sane and competent at the time of its execution. Snodgrass v. Knight, 43 W. Va. 294 (27 S. E. Rep. 233). A grantor who is mentally capacitated to understand ordinary business transactions at the time he executes a deed, and understands the motive and effect of such deed, knows what property he is conveying, and to whom it is being conveyed, is competent to make such deed. Kelly v. Perrault, Idaho (48 Pac. Rep. 45). In order for a grantor's voluntary conveyance to be cancelled on account of his mental incapacity, it must be satisfactorily shown that at the time the conveyance was executed, he was laboring under such a state of mental weakness or exaltation as to be incapable of fully understanding the nature and effect of the transaction; and his lack of power to execute a conveyance cannot he inferred from his extreme age. Carnagie v. Diven, 31 Or. 366 (49 Pac. Rep. 891). Particular evidence held sufficient to authorize the cancellation of a conveyance on account of the

grantor's mental incapacity. Tomlinson v. Tomlinson, 103 Ia. 740 (72 N. W. Rep. 664); Davis v. Calvert,

Ky.

Ky.

(38 S. W. Rep. 884); Thompson v. Thompson, (39 S. W. Rep. 822); Mays v. Prewett, 98 Tenn. 474 (40 S. W. Rep. 483). Particular evidence held insufficient to authorize the cancellation of a deed on account of the mental incapacity of the grantor. Harrison v. Otley, 101 Ia. 652 (70 N. W. Rep. 724); Claflin v. Claflin, 102 Ia. 744 (71 N. W. Rep. 210); Lodewick v. Lacroix, 115 Mich. 590 (73 N. W. Rep. 897); Kelly v. Perrault, Idaho (48 Pac. Rep. 45).

Sec. 186. Cancellation of deed for fraud. A conveyance for an adequate consideration by one of his interest in an estate as heir procured by the grantee fraudulently representing to him that he had no interest in the estate, may be set aside for fraud. Motherway v. Wall, 168 Mass. 333 (47 N. E. Rep. 135). A complaint by a husband, to cancel for fraud a conveyance to his wife, in consideration of her agreement not to treat him in a cruel or inhuman manner, nor to desert him, but live with him as a true, dutiful and affectionate wife was held insufficient, where it simply alleged her violation of the promise, without alleging any material fact showing a fraudulent intent on her part at the time of the making of the promise. Hodsden v. Hodsden, 69 Minn. 486 (72 N. W. Rep. 562). Where a conveyance is executed in consideration of certain notes secured by a deed of trust, which are in fact worthless, being executed by a fictitious person, all of which is known to the party procuring the deed, and the grantor is fraudulently led to believe that they are worth their face value, the conveyance will be set aside for fraud. Rice v. Silverston, 170 Ill. 342 (48 N. E. Rep. 969). For particular cases in which the evidence was held sufficient to set aside a deed for fraud, see Leonard v. Medford, 85 Md. 666 (37 Atl. Rep. 365; 37 L. R. A. 449); King v. Carmody, 101 Ia. 682 (70 N. W. Rep. 734); Lillibridge v. Allen, 100 Ia. 582 (69 N. W. Rep. 1031); Spurier v. McClintock, 104 Ia. 79 (73 N. W. Rep. 599). Particular cases in which the evidence was held insufficient to set aside a deed for fraud. Hatcher v.

Hatcher, 139 Mo. 614 (39 S. W. Rep. 479); Wiester v. Wiester, (48 Pac. Rep. 1086).

Cal.

`Sec. 187. Cancellation of deed for undue influence or duress. Undue influence, to render a deed void, must be of such character as to deprive the grantor of free agency. Shea v. Murphy, 164 Ill. 614 (45 N. E. Rep. 1021; 65 Am. St. Rep. 215). In order to set aside a deed on the ground of undue influence, such influence must have existed at the time of the execution of the deed and must be a controlling influence in impelling its execution. The act of inducing one who has not sufficient mind to know what he is doing, to sign a deed, while an actual fraud, does not constitute undue influence. Undue influence is proven by showing that a person who is mentally capacitated to understand and does undersstand what he is doing, is impelled by artifice, force or fear, to do what he does not want to do and what he would not otherwise do but for such influence. Kelly v. Perrault, Idaho (48 Pac. Rep. 45). In an action to cancel a deed. on account of undue influence, it is proper to show that mother of the grantee exercised a strong influence over the grantor. Riley v. Hall, 119 N. C. 406 (26 S. E. Rep. 47). Particular evidence held sufficient to set aside. a deed for undue influence. Landis v. Smith, 113 Mich. 407 (71 N. W. Rep. 937); Dingman v. Romine, 141 Mo. 466 (42 S. W. Rep. 1087). For particular cases in which the evidence is held insufficient to set aside a deed on account of undue influence, see Doherty v. Noble, 138 Mo. 25 (39 S. W. Rep. 458); Claflin v. Claflin, 102 Ia. 744 (71. N. W. Rep. 210); Chambers v. Brady, 100 Ia. 622 (69 N. W. Rep. 1015). Particular evidence held insufficient to authorize the cancellation of a deed on account of duress. Hagan v. Waldo, 168 Ill. 646 (48 N. E. Rep. 89). The same as to a mortgage. Detroit Nat. Bank v. Blodgett, 115 Mich. 160 (73 N. W. Rep. 120).

the

Sec. 188. Cancellation of conveyances between persons occupying fiduciary relations-Burden of proof. A deed direct from the husband to his wife will not be presumed to be the result of undue influence on account of the

marital relation. Tillaux v. Tillaus, 115 Cal. 663 (47 Pac. Rep. 691). In Missouri it is held that the fact that the grantees sustained the relation of. son and son-in-law to the grantor, does not cast on them the burden of showing that the transaction was free from fraud or undue influence. Hatcher v. Hatcher, 139 Mo. 614 (39 S. W. Rep. 479). Particular evidence held sufficient to establish a confidential relation between the parties so as to cast the burden of proof upon one receiving the benefit of an unfair transaction with an aged person. Stepp v. Frampton, 179 Pa. St. 284 (36 Atl. Rep. 177); Cole v. Getzinger, 96 Wis. 559 (71 N. W. Rep. 75); Dingman v. Romine, 141 Mo. 466 (42 S. W. Rep. 1087). Particular evidence held insufficient to show the existence of a fiduciary relation. Mauney v. Redwine, 119 N. C. 534 (26 S. E. Rep. 52).

Sec. 189. Quitclaim deeds. A grantee in a quitclaim deed from one holding the mere legal title, takes subject to the prior equities of third parties. Clemons v. Cox, 114 Ala. -350 (21 So. Rep. 426). One who takes a quitclaim deed from one holding the record title of land through a tax deed, who at the time he executes the quitclaim deed, declares that he had no interest in the land, acquires no title as against the real owners of the property. Hentig v. Pipher, 58 Kan. 788 (51 Pac. Rep. 229). One having no notice of a prior unrecorded deed who takes a conveyance of a mortgagee's interest by quitclaim deed, may claim as a bona fide purchaser as against the grantee of the unrecorded deed. Mass. Pub. Stat. ch. 120, § 4, applied. Starke v. Boynton, 167 Mass. 443 (45 N. E. Rep. 764). A quitclaim deed will pass a title acquired by adverse possession, under Mass. Pub. Stat. ch. 120, § 2, providing that such a deed "shall be sufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and sale." Ex parte Connolley, 168 Mass. 201 (46 N. E. Rep. 618). One who makes a quitclaim deed by which he does "hereby grant, bargain, and sell and quitclaim," and which does not contain any covenants or warranty of title, is not liable on the deed for defects or failure of title. Nelson v. Hamilton Co., 102 Ia. 229 (71 N. W. Rep. 206).