#### DAVID L. DIXON v. CLARA GREEN.

(Filed 1 October, 1919.)

1. Pleadings — Interpretation—Facts Alleged.

A pleading, under the provisions of Rev., sec. 495, is to be liberally construed, with every intendment favorable to the pleader, and if any portion of it, or if it to any extent, presents facts sufficient to constitute a cause of action, or if such facts may be fairly gathered from it, however inartificially it may be drawn, or however uncertain, defective or redundant may be its statements, it will be construed as sufficient.

2. Same — Deeds and Conveyances — Fraud—Undue Influence.

In a complaint to set aside a deed for fraud or undue influence, the use of these words are not required for the sufficiency of the allegations, *206if it appear from the pleadings that the facts alleged, are in themselves sufficient, by correct interpretation, to constitute the fraud or undue influence relied upon.

:3. Deeds and Conveyances — Fraud—Undue Influence.

While it is not required that the grantor in a deed, sought to be set aside for fraud or undue influence, exercised by the grantee in inducing its execution, should have been a lunatic at the time, equity will grant relief if he has been so weakened by old age, in mind and body, as not to be able to resist the grantee’s imposition or excessive importunity, if it be further shown that the grantor has been actually imposed upon by the use of either of these means, by the stronger mind of the one using them, who stood in the confidential relation of a friendly adviser, in whom sole and implicit reliance in thd matter had been placed by the grantee, though weakness of the grantor’s mind or inadequate consideration will not, alone, be sufficient.

4. Same — Pleadings—Issue—Demurrer—Appeal and Error.

The refusal of the court to submit an issue as to undue influence in the procurement of a deed, the grantor seeks to set aside upon the ground that it has not been sufficiently pleaded, has the effect of a demurrer to the sufficiency of the allegations thereof, and they will be assumed to be true on appeal.

5. Deeds and Conveyances — Undue Influence — Fraud.

Undue influence in the procurement of a deed is not always, though frequently, fraudulent, and such influence exists where the will of the person having the stronger mind is substituted for that of him who has the weaker one; and where such influence is paramount and used for the benefit or advantage of the one exercising it, or for a selfish purpose, as is alleged in this ease, and the deed has accordingly been executed to him. the law regards it as fraudulent.

■6. Pleadings — Answers — Inconsistent Defenses — Deeds and Conveyances— Undue Influence — Fraud.

A defendant may plead contradictory or inconsistent defenses, as in this case, that she had not executed a deed for lands to the plaintiff, the subject of the controversy, and that if she had done so it was procured by fraud and undue influence, etc.

7. Appeal and Error — Issues — Issue Tendered — New Trials — Verdict Set Aside — Interdependent Issues.

Where the trial judge has erroneously refused to submit an issue tendered by a party to the action, and this and the issues submitted and found against him are somewhat interdependent, and injustice may be done him by granting a new trial only under the issue refused, the Supreme Court may set aside the answers to the issues submitted, and direct a new trial under all of the issues.

ActioN tried before Guión, J., and a jury, at June Term, 1919, of LENOIR.

Tbe plaintiff sued for the recovery of a lot in Kinston. He alleged ■ownership and right of possession, and the defendant’s unlawful with-*207bolding of the possession from him. The defendant denied plaintiff’s allegations, except as to her possession and the plaintiff’s depiand for the possession, and further denied that she executed to the plaintiff the deed under which he claims the land, and averred that if she did execute it she did not, at the time, have sufficient mental capacity to do so, being then very old, about 78 years of age, and-greatly enfeebled in mind and body and very decrepit, and her mental faculties impaired by the infirmities of old age and by “wretched physical health.” That her daughter had advised her to come to New York where she resided, presumably so that she might care for her. We will state the remainder of her aver-ments in her own language. While in this enfeebled mental and physical condition, as above described, “the question arose as to what would be done with her interest in said lot; she talked the matter over with the plaintiff, who was her next-door neighbor and in whom she had implicit confidence, and she did state to said plaintiff, upon his suggestion that lie would take the land while she was away, that she would be willing to let him have it if she went to New York at the rate of $25 per year, and at the same time she expressly stated to the plaintiff that it was her dower right and her only home,, and that she had refused many times to sell it for large and valuable considerations, and that under no conditions would she part with her home so that she could not return to it. That she does remember agreeing that the said plaintiff might have the use of the lot of land during her absence at the rate of $25 per year, with the understanding that she in no way released her life estate therein, and should have her home returned to her when she returned to Kinston, but she denies that she ever agreed to anything else and she has no knowledge of any other understanding. And furthermore, this defendant alleges that the plaintiff expressly stated and promised her in his conversation on the subject that she should not be disturbed in her home, and that the transaction that he referred to was for her protection, and that he was only to have the land during her absence from Kinston, and at the same time he proffered and offered his help in getting away from Kinston, and promised that if necessary he would help her in returning to her home when she desired to return, and that in all these promises and conditions this defendant absolutely and implicitly relied upon the plaintiff to carry same out as same were understood by her and stated to her. That the plaintiff well knew and understood the weak and decrepit physical and mental condition of this defendant at the time hereinbefore mentioned, and well knew that she was a very aged colored woman, and had no knowledge of business transactions, and further well knew that she relied upon him to protect her, and the promises, statements and representations herein made were made with such knowledge on the part of the plaintiff were relied upon *208by the defendant and served as an inducement upon wbicb sbe acted. Whatever action sbe took at tbe time, and tbe only action wbicb sbe' knows of or understood-, however, being tbe verbal agreement herein referred to. That tbe said lot of land is a valuable lot in tbe city of Kinston, on Mcllwean Street, being one of tbe principal residential streets of tbe city, and being in a section where many of tbe most desirable citizens of Kinston reside, and constituting one of tbe most desirable residential sections of said city. That tbe said lot is in dimensions 80 feet front on Mcllwean Street by 169 feet deep, and that its rental value with tbe small bouse upon it in wbicb this defendant resides would be at least $100 per year. That tbe consideration appearing in tbe purported paper-writing under wbicb plaintiff claims is so grossly inadequate, and especially considering tbe conditions hereinbefore set forth, and tbe difference in station, ability and standing of tbe parties, that this defendant is informed, believes and avers that in equity tbe said consideration would necessarily shock tbe conscience of tbe court,, and would not support an absolute deed to tbe life estate of tbe defendant to tbe said lot, even if such deed has been executed, wbicb latter matter of tbe execution of tbe said deed is expressly denied. That tbe defendant is informed, believes'and avers that upon all tbe facts herein alleged tbe court of equity will not permit tbe plaintiff to recover possession of tbe lot of land by virtue of tbe purported paper-writing herein referred to, and that said paper-writing is a cloud upon defendant’s life estate, wbicb sbe is entitled to have removed, and that said paper-writing is absolutely invalid and void. That further, this defendant now being eighty years of age and in weakened physical condition, unable most of tbe time to leave her bed, has no other property whatever except her interest in tbe lot herein set forth. That sbe is absolutely without any other home, and that if tbe court should sustain tbe alleged paper-writing under wbicb tbe plaintiff claims in this case it would result in taking from tbe defendant her home and leave her without any place of abode whatsoever.”

There is a prayer for tbe proper relief. Tbe court refused to submit issues tendered by tbe defendant as to fraud or undue influence, or to-bear evidence offered by tbe defendant upon any such issues as defendant has denied tbe execution of tbe deed. Defendant excepted. Tbe court then submitted issues as to tbe execution of tbe deed, defendant’s mental capacity and plaintiff’s ownership of tbe land, wbicb tbe jury answered in favor of plaintiff.' Judgment upon tbe verdict, and defendant appealed.

Bouse & Rouse for plaintiff.

Gowper, Whitaker & Allen and J. L. Homme for defendant.

*209WaukeR, J.,

after stating tbe case as above: Tbe only question before us is tbe sufficiency of tbe answer to raise tbe issues tendered by tbe defendant regarding fraud and undue influence. We are required by tbe statute (Bev., sec. 495) to construe a pleading liberally, and in enforcing tbis provision we bave adopted tbis rule: tbat if in any portion of it or to any extent it presents facts sufficient to constitute a cause of action, or if facts sufficient for tbat purpose can be fairly gathered from it, tbe pleading will stand, however inartificially it may bave been drawn or however uncertain, defective and redundant may be its statements for, contrary to tbe common-law rule, every reasonable in-tendment and presumption must be made in favor of tbe pleader. Tbis is what we held in Blackmore v. Winders, 144 N. C., 212, and more recently in Brewer v. Wynne, 154 N. C., 467; Renn v. R. R., 170 N. C., 128, 136; Lee v. Thornton, 171 N. C., 209.

There is no magic in using tbe word “fraud,” as a term, in order properly to plead fraud, nor is it necessary to state “undue influence” in those words in order to rely upon such a plea. It is sufficient to state tbe facts from which fraud and undue influence arise. While tbis has been held in numerous cases there is a good statement of tbe doctrine in 12 E. C. L., at p. 417, see. 164, to tbis effect. While fraud must be clearly charged, it is not necessary to allege it in terms if tbe facts alleged are such as in themselves constitute fraud, or if so alleged tbat fraud may be inferred or presumed, for tbe acts charged are not less fraudulent because tbe word “fraud” or “fraudulent” is not employed by tbe pleader in characterizing them. In other words, an allegation of facts from which tbe conclusion of fraud may result is sufficient.

Now as to what is sufficient to constitute fraud or undue influence. Although tbe plaintiff be not a lunatic or insane, yet if her mind was so weak tbat she was unable to guard herself against imposition, or to resist importunity or tbe use of undue influence, equity will grant her tbe relief she seeks, provided it be shown tbat she has been imposed upon by tbe use of either of tbe means enumerated. Mere weakness or inadequate consideration, however, will not be sufficient. A court of equity cannot measure tbe understandings or capacities of individuals. Where there is a legal capacity there cannot be an equitable incapacity apart from fraud. 1 Fonbl. Eq., B. 1, M. 2, S. 3. If she be of sane mind she has a right to dispose of her property, and her will stands in place of a reason, provided tbe contract or act justifies tbe conclusion tbat she has exercised a deliberate judgment such as it is, and has not been circumvented or imposed on by cunning, artifice, or undue influence, means abhorrent to equity, and constituting fraud. Rippy v. Gant, 39 N. C., 445. “Tbe mere fact tbat a man is of weak understanding, or is below tbe average of mankind in intellectual capacity,, is not of *210itself an adequate ground to defeat the enforcement of an executory contract or to set ¿side an executed agreement of conveyance. But where mental weakness is accompanied by other inequitable incidents— such as undue influence, great ignorance and want of advice, and inadequacy of consideration — equity will interfere and grant either affirmative or defensive relief.” Eaton on Equity, p. 317; Sprinkle v. Wellborn, 140 N. C., 173, 174. Lord Hardwicke, in Earl of Chesterfield v. Janssen, 2 Vesey Sr., 125, said there .is a third kind of fraud, in his classification which has been generally adopted, which may be presumed from the circumstances and conditions of the parties contracting; and this goes further than the rule of law, which is that it must .be proved and not presumed; but it is wisely established in this Court to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do is equally against conscience as to take advantage of his ignorance. The subject is fully discussed in Sprinkle v. Wellborn, supra; Pritchard v. Smith, 160 N. C., 79, and in Hodges v. Wilson, 165 N. C., 323, where the cases are collected and the limitation of the doctrine with respect of fraud in conveyances is properly limited. See, also, the following other cases decided by this Court: Smith v. Beatty, 37 N. C., 456; Suttles v. Hay, 41 N. C., 124; Mullins v. McCandless, 57 N. C., 425; Hartly v. Estis, 62 N. C., 167; Myatt v. Myatt, 149 N. C., 137; Bellamy v. Andrews, 151 N. C., 256; Braddy v. Elliott, 146 N. C., 578; Buffalow v. Buffalow, 22 N. C., 241, and Futrill v. Futrill, 58 N. C., 61 (S. c., 59 N. C., 337). The last ease, while slightly different in its facts, and in some respects not so very material, -lays down the rule which should govern in cases where there is no technical or well-defined confidential relation but where there was professed friendship for the grantor, and acquired influence over him and circumstances of imposition, oppression and deceit, the grantor having become enfeebled in mind and body, and the deed having been procured when the grantor was in no condition to understand it and did not know its contents, and had no sufficient opportunity to obtain the counsel and advice of a disinterested friend, relying upon the trust and confidence he placed in the grantee instead.

"With these authorities before us let us briefly review the facts as alleged in the answer, for the action of the judge in disregarding them as not pertinent and his refusal to submit issues upon them were the same as if the plaintiff had demurred to the defense so set up. We must assume these allegations to be true upon this appeal, although it may hereafter so happen that the proof will not substantiate the charge. The defendant was, at the time of this transaction, very old (now 80 years of age) and decrepit, in wretched physical health, unable most of the time to leave her bed, and without such mental capacity as would *211enable ber to execute a deed understandingly. Sbe was going to New York to spend a while witb ber daughter and wished to lease ber home while sbe was absent. Sbe bad been offered many times a large price for it, and bad refused to sell. In this situation sbe thought of the plaintiff as being ber neighbor who lived next door to ber, and who bad ostensibly been a friend in whom sbe bad placed “implicit confidence.” Sbe turned to him for succor, and upon bis suggestion that be would take the land while sbe was gone, sbe stated to him that sbe would take twenty-five dollars per year if sbe did go to New York, remarking at the time that it was ber dower and ber only home, and that under no condition would sbe part witb this land so that sbe could not return to it, and it was agreed that it should be returned to ber when sbe came back to Kinston, so that sbe should not be disturbed in ber home. That this was the only understanding. That be promised to help ber go to New York and return to ber borne, and sbe relied upon all these promises when sbe signed the paper. That the plaintiff well knew of her weak and decrepit condition and of ber age, and also that sbe relied upon him to protect ber; and bis promises and bis attitude towards ber were the inducements to sign the paper. The said lot is a valuable one, being situated on one of the principal residential streets and is one of the most desirable lots in the city of Kinston, it being 80 feet in width by 169 feet in length, and its rental value is at least $100 per year. That the consideration stated in the deed held by the plaintiff is a grossly inadequate one (being only twenty-five dollars annually so long as the grantor lives); so gross that it would “shock the conscience and moral sense of the court.” That the difference in the station, ability, and standing of the parties is very great, defendant being the weaker of the two. That if the lot is taken from ber sbe will be left without any place of abode. Upon the allegations, and in accordance witb the precedents, we are of the opinion that the case should be submitted to the jury upon both issues — fraud and undue influence. The latter, while generally classed-under the title of fraud, is not necessarily a fraudulent influence though it frequently is so. It is a controlling influence when the weaker succumbs to the stronger and the latter’s will is substituted for that of the former. It is a paramount influence, and when it is used for the benefit or advantage of him who exercises it for such a selfish purpose it may well be called “fraudulent,” and the law so regards it; but there may be cases where it is not actually fraudulent but in a moral sense innocent though not harmless.

In this ease we have allegations sufficient to show fraud and undue influence, viz.: mental and physical weakness and imbecility, extreme old age, grossly inadequate consideration, greater superiority of the one over the other, the relation of friend and advisor, and consequent full *212confidence of the weaker in the stronger and reliance on him, the necessitous condition of the defendant, and finally an allegation of a virtual misrepresentation as to the contents of the deed, which is an absolute conveyance of the land, and not a lease, founded upon a small consideration.

The defendant could plead double, and set up inconsistent or contradictory defenses. McLamb v. McPhail, 126 N. C., 218; Williams v. Sutton, 164 N. C., 216; Clark’s Code (3d Ed.), sec. 245; 1 Pell’s Revisal, p. 226, sec. 482, and note with cases.

It may be that in the development of the case the defendant’s proof may not sustain her allegations of fraud and undue influence, but what she has charged is sufficient in law and entitles her to be heard before the jury.

As the issues will be somewhat interdependent and injustice may be done by allowing them as now answered to stand, we direct that they be set aside and that the whole case be tried again upon all of the issues which are raised by the pleadings, and it will be so certified.

New trial.