Sec. 153. Reservations in deeds. A grantor cannot show a parol reservation of trees and the right of pasturage. Dodder v. Snyder, 110 Mich. 69 (67 N. W. Rep. 1101). The estate of a grantor who reserves the absolute title to a certain portion in the second story of a building is extinguished by the destruction of the building. Leonard v. Read, Tenn. (36 S. W. Rep. 581). Where the consideration recited in a deed was a small cash payment and the grantee's agreement to support the grantor for life and it is stipulated in the deed that "it being understood that possession of said property is to be given at my death," a life estate will be held to have been reserved by the grantor. Hart v. Gardner, 74 Miss. 153 (20 So. Rep. 877). Where a deed, after describing the property to be conveyed, reserves a portion of such property for a particular use, it operates as a conveyance of the fee of the reserved portion subject to the use specified. Towne v. Salentine, 92 Wis. 404 (66 N. W. Rep. 395). A deed containing this clause: "Saving and reserving from this conveyance that said Dyers [the grantees] are not to have the right of erecting a building within five feet from the easterly line and within twenty-five feet from my store, and that said five feet is to be forever reserved for a passageway back in common with themselves and others," was held to convey the fee of the five-foot strip reserving merely an easement. Morrison v. First Nat. Bank, 88 Me. 155 (33 Atl. Rep. 782); First Nat. Bank. v. Morrison, 88 Me. 162 (33 Atl. Rep. 784).

Sec. 154. Cancellation of deed for mistake. A vendee who seeks the cancellation of a deed on account of a mutual mistake as to the amount of incumbrances assumed by him must act promptly upon the discovery of the mistake, and relief will be denied him where he continues to act under the conveyance, after he has knowledge of the mistake, until the property is greatly depreciated in value. Hudson v. Hudson v. Waugh, 93 Va. 518 (25 S. E. Rep. 530).

Sec. 155.

Cancellation of deed on account of grantor's mental incapacity. Mental incapacity to execute a writ-. ten instrument is not established by showing that at the time

of its execution the party executing the same was suffering much pain and had been frequently under the influence of morphia about that time. Krause v. Stein, 173 Pa. 221 (33 Atl. Rep. 1031). Particular cases in which the evidence was held insufficient to set aside deeds on account of mental incapac ity of grantor. Hopper v. Hopper, N. J. Eq. (35 Atl. Rep. 400); Caldwell v. Finch, 96 Ia. 698 (65 N. W. Rep. 994); Schneitter v. Carman, 98 Ia. 276 (67 N. W. Rep. 249). See Infants & Insane Persons.

Sec. 156. Cancellation of deeds for fraud. Fraud is never presumed; it must be affirmatively shown like any other fact. Brady v. Cole, 164 Ill. 116 (45 N. E. Rep. 438). A deed obtained from a principal to his agent by the fraud of the latter, may be set aside by a suit instituted by a subsequent grantee of the principal. Prince v. DuPuy, 163 Ill. 417 (45 N. E. Rep. 298). A mere mistake of law will not alone be ground of relief against a conveyance, nor will a mere misstatement of law constitute sufficient fraud for its annullment, but when either is accompanied by fraud in any form, such as misrepresentation or concealment of fact, imposition, undue influence, or misplaced confidence, or advantage has been taken of one's ignorance of law to mislead him, or there is a relation of trust and confidence between the parties, a court of equity may set aside the instrument. Schuttler v. Brandfass, 41 W. Va. 201 (23 S. E. Rep. 808). A grantor who has fully executed a conveyance which was not in itself either illegal or fraudulent but was made for the purpose of assisting the grantee in the perpetration of a fraud cannot maintain an action to set it aside. Walton v. Blackman, Tenn. (36 S. W. Rep. 195). For particular fact cases in reference to cancellation of deeds for fraud, see Wilson v. Brown, Tenn. (35 S. W. Rep. 1098); Walton v. Blackman, Tenn. (36 S. W. Rep. 195); Knack v. Usher, N. J. Eq. (35 Atl. Rep 389); Hopper v. Hopper, J. Eq. (35 Atl. Rep. 400); Doxtater v. Connell, 93 Wis. 113 (66 N. W. Rep. 1135); Reddin v. Dunn, 22 Colo. 127 (43 Pac. Rep. 1006); Williams v. Stone, Wyo. (45 Pac. Rep. 1070).

N.

Sec. 157. Cancellation of deed for fraud-Return of consideration. Where it appears that one who is seeking to have a conveyance set aside on account of fraud in its procure. ment, receives something of value in the transaction, he will be required to make a restitution of the valuable thing, before relief will be granted to him, if it appears that the consideration was given for one thing, when in fact it appears that, by the fraudulent representations of the defendant, it was given for another thing. Ellison v. Beannabia, 4 Okla. 347 (46 Pac. Rep. 477). Citing, Mullen v. Old Colony Railroad Co., 127 Mass. 86 (34 Am. Rep. 349).

Sec. 158. Cancellation of deeds for undue influence. A grantor may attack his deed on account of undue influence and duress in its procurement without showing any informality or irregularity in its execution or acknowledgment. Caffey's Ex'rs v. Caffey, 12 Tex. Civ. App. 616 (35 S. W. Rep. 738). A deed of gift from a capable parent to part of her children to the exclusion of others is not presumed invalid unless the grantees are shown to have occupied a confidential relation with the grantor; and where such conveyance is in pursuance of a long cherished purpose of the grantor clear proof of undue influence will be required to set it aside. Bauer v. Bauer, 82 Md. 241 (33 Atl. Rep. 643). A court of equity will not avoid a conveyance when made by one who though weak and in failing health, is not of unsound mind, where he deliberately disposes of his property to a child in consideration of the latter's undertaking to provide for his support, if it appears that he was aware of the consequences of his act, and that it could not be recalled. The fact that the act was done by reason of the influence resulting from affection and attachment, or the mere desire to gratify the wishes of another, if the free agency of the party is not impaired, does not affect the validity of the act. Orr v. Pennington, 93 Va. 268 (24 S. E. Rep. 928). Citing, Greer v. Greers, 9 Grat. 330; Howe v. Howe, 99 Mass. 88; notes to Huguenin v. Baseley, 2 White & T. Lead. Cas. Eq. pt. 2, p. 1211. Weakness of mind alone does not render one incapable of making a conveyance, but when a person is weak and enfee bled in mind, by reason of age, or from any other cause, and

another takes advantage of such weakness, and by any threats, artifice, or cunning, or undue influence he may possess, or by improper practices, induces such person to execute a conveyance which, in the free use of his deliberate judgment, he would not have entered into, such conveyance should be set aside for fraud. Yount v. Yount, 144 Ind. 133 (43 N. E. Rep. 136). Particular fact cases illustrating what undue influence is sufficient to set aside a deed. Yount v. Yount, 144 Ind. 133 (43 N. E. Rep. 136); Ewing v. Clark, 65 Minn. 71 (67 N. W. Rep. 669); Davis v. Miller, 98 Ia. 516 (67 N. W. Rep. 387); Poss v. Huff, 98 Ga. 377 (25 S. E. Rep. 447); Martin v. Baker, 135 Mo. 495 (36 S. W. Rep. 369).

Sec. 159. Cancellation of deeds for fraud and undue influence- Fiduciary relations-Burden of proof. A conveyance unsolicited by the grantee and voluntarily executed by a grantor to a confidential friend who had voluntarily assisted him in his business affairs, to the exclusion of the grantor's legal heirs, upon the consideration of the grantee's paying the grantor a certain fixed sum during his life, and such further sums as his necessities might require, will not be set aside on account of fiduciary relations of the parties. Looby v. Redmond, 66 Conn. 411 (34 Atl. Rep. 102). The court say: "It is an undoubted equitable rule that one acting in a trust, or in any fiduciary relation, shall not be permitted to make use of that relation to benefit his own personal interest. The reason of this rule is that the fiduciary owes a duty to the cestui que trust, to protect him in respect to the estate which is the subject of the trust. It may be a duty imposed by law, or one undertaken by contract, and equity will not allow a fiduciary to put his personal interest into conflict with his duty to his beneficiary. The application of this rule to the recognized relations of trust is easy; as to a trustee, an attorney, a guardian, a partner, or other like relation. The test of the relation is the existence of the duty. If there is no duty resting on the supposed fiduciary to protect the beneficiary, then this trust relation does not exist. However great the confidence may be which one person has in another, if there is no duty upon that other to protect the former, then there is no fiduciary relation between them." Citing, Hemingway v

Coleman, 49 Conn. 390 (44 Am. Rep. 243); Harrison v. Guest, 8 H. L. Cas. 481, 6 De Gex, M. & G. 424; Bunn v. Chambers, 4 Barb. 376; Pratt v. Thornton, 28 Me. 355 (48 Am. Dec. 492); Farnam v. Brooks, 9 Pick. 212; Long v. Long, 9 Md. 348; Cain v. Warford, 33 Md. 23; Smith v. Elliott, 1 Pat. & H. 307; Whitehorn v. Hines, 1 Munf. (Va.) 557; Rippy v. Gant, 4 Ired. Eq. 443; Dennett v. Dennett, 44 N. H. 531 (84 Am. Dec. 97); Nace v. Boyer, 30 Pa. St. 99, 100; Sturtevant v. Sturtevant, 116 Ill. 340 (6 N. E. Rep. 428); Darnell v. Rowland, 30 Ind. 342."

The rule stated above applies to conveyances from client to attorney. Ross v. Payson, 160 Ill. 349 (43 N. E. Rep. 399). Although the relation of guardian and ward has terminated, a purchase of land by a guardian from his ward, a relative of his, while residing in his family, will be set aside where it appears that he has not paid the fair value of the land. Earhart v. Holmes, 97 Ia. 649 (66 N. W. Rep. 898). In a recent and well considèred case in which the authorities are collated and reviewed, it is held that where an invalid daughter, without any consideration, conveys her entire estate consisting of valuable realty to her mother, who is already wealthy, in the absence of any evidence going to show the reasonableness and justness of the transaction, the deed will be presumed to have been procured by the fraud) or undue influence of the mother, and upon her rests the burden of showing that the transaction was fair and reasonable. White v. Ross, 160 Ill. 56 (43 N. E. Rep. 336). Where an aged parent residing with his daughter and her husband upon whom he depended for the personal comforts of a home and for assistance in the transaction of his business executed a deed of gift to them which was not an unreasonable disposition of his property, they will not be held to have the burden of showing the absence of undue influence there being no evidence that they exercised any pursuasion to obtain the gift. Teegarden v. Lewis, 145 Ind. 98 (44 N. E. Rep. 9). When one of the parties is old and feeble, illiterate and weakminded, from sickness or other cause, very slight circumstances will cast the burden on the other party. Yount v. Yount, 144 Ind. 133 (43 N. E. Rep. 136). Citing, Wray v. Wray, 32 Ind. 126; Ikerd v. Beavers, 106 Ind. 483, 488-490