#### ZANEY BALTHROP v. JAMES H. TODD and wife.

(Filed 2 October, 1907).

1. Deeds and Conveyances — Fraud—Burden of Proof — Nonsuit.

In an action to set aside a deed for fraud it was error in tbe Court below to sustain a motion as of nonsuit at tbe close of plaintiff’s evidence, tending to show that tbe male defendant procured tbe deed to be made to bis wife, tbe sister of tbe plaintiff; that tbe defendants bad made tbeir borne- with tbe plaintiff for fourteen years and possessed ber trust and confidence, tbe feme defendant being ber sister and tbe male defendant ber brotber-in-law; that tbe plaintiff was a feeble old woman, in bad bealtb, a widow, childless, could not read or write; that there was no consideration for tbe deed, though such was therein recited; that as an inducement for making the deed tbe male defendant promised to take care of tbe plaintiff for life, with tbe purpose of getting tbe deed and then “dropping ber.”

2. Same — Presumptions—Evidence—Jury.

When tbe evidence disclosed that tbe act complained of was induced by those in friendly relations and from one in a position of dependence or habitual reliance for advice, a presumption of fraud is raised hs a matter of fact, and is alone sufficient to go to tbe jury.

Civil actioN, tried at April Term, 1901, of Nash Superior Court, before Biggs, J., aud a jury. Tbe action was brought to set aside three deeds executed 1 March, 1900, by plaintiff to Sarah J. Todd, the feme defendant. At the close of the evidence defendants’ motion to nonsuit was sustained, and plaintiff excepted and appealed.

Jacob Battle for plaintiff.

F. S. Spruill for defendants.

BitowN, J.

It is in evidence that on 1 March, 1900, the plaintiff, a feeble old woman, approaching seventy years, con-" veyed her entire landed estate, consisting of three tracts, to her sister, Sarah J. Todd, with whom and her husband, James II. Todd, the plaintiff had made her home for some fourteen years. No money w.as paid or promised, and at the *113time the defendants did not claim that plaintiff owed them a penny. Plaintiff .bad no other property whatever, except $108, to support herself. In her advanced age and enfeebled condition she leaned upon her brother-in-law and sister and reposed trust and confidence in them. Plaintiff was a widow, childless, could not read and write, and was in bad health. Shortly before the deeds were executed Todd told a neighbor that the plaintiff had some money and land; that he was going to promise to take care of her during her life, and thus get her property, and .after he got it he was going to drop her. He told the plaintiff that her brother intended to have a guardian appointed for her, and then she could no longer control her own property. She doubtless thought that it was necessary to do as her brother-in-law told her to do in order to retain control of her property. She asked him if she could not make a will. lie said: “Make a deed; it will be best, as a will can be destroyed.” James H. Todd then procured the deeds to he written and executed at his house, reciting a money consideration, although not a dollar was paid or promised, and no claim made that plaintiff owed him anything.

Clearly his Honor erred in not submitting the case to the jury upon appropriate issues and under proper instructions. It is true that the evidence does not bring the case within either of the four definite fiduciary relations mentioned by Judge Pearson in Lee v. Pearce, 68 N. C., 87, when the Court can instruct the jury that fraud is presumed as matter of law. But the evidence discloses plainly such “confidential relation” or “position of dependence” that, if the jury find the facts to be as testified to by plaintiff, the burden of proof shifts, and to sustain the validity of the deeds the defendants must satisfy the jury of the bona fides and legality of the transaction. The evidence brings it within that class mentioned by Lord Hard-ivich in Chesterfield v. Jansen, where fraud arises from the circumstances and condition of the immediate parties to the *114transaction. 2 Pom. Eq., secs. 922, 923. It comes within the fourth class of those quasi relations of confidence mentioned in Lee v. Pearce, viz.: “When the relation is that of friendly intercourse and habitual reliance for advice,” which, Judge Pearson says, “raises a presumption of fraud as matter of fact, to pass before the jury for what it may be worth.” See, also, Buffalo v. Buffalo, 22 N. C., 241; Smith v. Moore, 142 N. C., 296; Timmons v. Westmoreland, 12 N. C., 587; Bigelow on Fraud (1890), p. 295; 2 Pom. Eq., secs. 928 (2) and 956.

New Trial.