#### Toll v. Toll.

Opinion delivered October 21, 1918.

Cancellation of instrument — sufficiency of evidence. — -Evidence held to justify decree of chancellor refusing to cancel a deed of conveyance from father to son upon the ground either of undue influence or failure of consideration.

Appeal from Prairie Chancery Court; Southern District; John B. Elliott, Chancellor;

affirmed.

J. F. Holtsendorff, W. H. Gregory and Eugene Lank-ford, for appellants.

1. The evidence clearly establishes a case of undue influence, legal fraud and failure of consideration. Oral testimony was admissible to explain the contract and show the real consideration. 86 Ark. 171; 103 Id. 467; 104 Id. 568; 55 Id. 112; 19 Col. 168. The contract was ambiguous. 113 Ark. 39.

2. Improper and undue influence was shown. 84 Ark. 493. A fiduciary relation existed between the parties, and the deed was prima facie voidable unless the grantee shows by clear and convincing proof uberrima fides. 244 111. 413; 249 Id. 56; 235 Id. 396; 112 N. W. 70; 237 111. 620. See also 13 A. & E. Ene. L. 11-12, etc.; 19 L. R.A. 767; 97 Ya. 143.

3. The burden of proof was on appellees to show fairness. 156 N. Y. 341; 120 Mich. 30; 100 Wis. 24. Appellee occupied a trust relation. 78 Ark. 116; 149 N. C. 137.

4. There was no real consideration. 86 Ark. 251; 103 Id. 464; 104 Id. 56i8; 124 Mich. 627.

J. G. Thweatt and Sam Frauenthal, for appellees.

1. The land was partnership property, and there was a good and valuable consideration for the deed. The deed and contract were in writing and made for valuable consideration. It was an executed contract and to set it aside the evidence must be clear, strong and conclusive. 9 C. J. 1254; 96 Yrk. 251; 100 Id. 565.

*382. Parol testimony was not admissible to vary tbe written contract, or contradict it. 99 Ark. 350; 90 Id. 426; 99 Id. 218; 109 Id. 82.

3. No undue influence was shown and many years allowed to elapse before any steps taken. There has been undue delay and laches. 19 Ark. 16; 137 IT. S. 556; 95 Ark. 178; 101 Id. 230; 103 Id. 58.

4. A good and valuable consideration was proven and no undue influence was shown. The chancellor’s decree is correct. 203 S. W. 286.

McCulloch, C. J.

This is a controversy between father and son concerning the cancellation of a deed executed by the former to the latter, conveying a certain tract of land in Prairie County, Arkansas. The deed of conveyance in question was executed by the plaintiff, B. Toll, and his wife, Jennie Toll, on June 12,1908, and was duly acknowledged and placed of record; and on the same day B. Toll, and R. H. Toll, the grantee in the deed, entered into a written contract reciting the execution of said deed, and providing, in substance, that the grantors might hold possession of the land conveyed during the period of their lives, and that the grantee should pay the taxes on the land during that time and keep up the repairs.

It is conceded on both sides that the effect of the conveyance and contemporaneous contract was to convey the fee to the grantee subject to the reservation of a life estate in the grantors. This action was begun by B. Toll and his wife in the chancery court of Prairie County on March 21, 1916, against R. H. Toll to cancel said deed and contract on the ground of undue influence alleged to have been exerted by R. H. Toll to induce his father to execute the same, and also on the ground of failure of consideration. The chancery court decided the issues of fact in favor of the defendant, and the plaintiffs have appealed.

It does not appear to us that the findings of the chancellor are against the preponderance of the testimony. B. Toll came to Arkansas with his six sons about twenty-five years ago, and they established themselves in busi*39ness in Prairie County under the firm name of B. Toll & Sons. They built up a business principally in selling prairie hay, and in the course of time title to about 1,100 acres of land was .acquired. This included the land in controversy — a tract containing twenty acres. The title was taken in the name of B. Toll individually, but it is claimed by the defendant that the lands really belonged to the partnership. It is unnecessary to determine in this case whether or not that contention of the defendant is well founded.

Defendant is the eldest of the sons, and he bought out his brothers, and the business at last came down to a partnership between the father, B. Toll, and R. H. Toll, the son. The lands were divided — at least a tract was conveyed to each of the sons, and the father kept one tract in his own name and also kept, after the division, the tract in controversy. R. H. Toll claimed, .after the division, that the tract received by him was not of equal value of the tract received by each of his brothers. The testimony warrants the conclusion that B. Toll made the conveyance in question to satisfy the claim of his son and to equalize the values of the several shares. ,At any rate, we fail to see any element of fraud or undue influence in the procurement of the conveyance. B. Toll is an old man, but is still active and apparently in full possession of his mental powers and strength of character. No trick or artifice was practiced to induce him to convey the land to his son, and he does not claim in his testimony that he was in any way misled by his son, or that any kind of inducement was brought to bear on him to get him to execute the deed. He executed it freely .and voluntarily and uncomplainingly. The only thing in the way of inducement of which he speaks in his testimony is that he was told by his son that he would be taken care of during his lifetime, and he now complains of his son’s conduct in not contributing to his expenses while in a hospital for treatment. The defendant paid the taxes on the land, except for the year 1914, when for special reasons he asked *40to be relieved of doing so, and tbe next year, when be says bis father’s wife paid the taxes before be (defendant) could do so. Defendant also built another bouse on tbe land at a cost of $500, and plaintiffs are getting tbe rents from tbe bouse. Plaintiffs waited about eight years after tbe execution of tbe conveyance until they took steps to set'it aside.

We do not think the testimony would justify a cancellation of tbe conveyance, or at least we cannot say that tbe chancellor was wrong in refusing to do so.

Affirmed.