ties; that while such relation existed the deed in question was executed without any adequate consideration; that by said deed appellant acquired title to real estate worth between $9,000 and $10,000, and the bill calls on the appellant to rebut the presumption which the law draws from the fiduciary relation established, and show, by clear and convincing proof, that she acted with good faith and did not betray the confidence reposed in her. The decree below canceling this deed is merely an adjudication that appellant has wholly failed to remove the suspicions which necessarily grow out of the nature of the transaction and the relation of the parties.

"Courts of equity have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. It not only includes all legal relations, such as guardian and ward, attorney and client, principal and agent, and the like, but it extends to every possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other. (Beach v. Wilton, 244 Ill. 413.) It is not necessary that the relation and duties involved be legal. They may be either moral, social, domestic, or merely personal. (Roby v. Colehour, 135 Ill. 300; Walker v. Shepard, 210 id. 100.) When a confidential or fiduciary relation is established between parties, courts of equity scrutinize very closely any transaction or contract between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence. All transactions between parties in this relation are presumptively fraudulent and void, and before a court of equity will permit such contract to stand, the proof must be clear and convincing and satisfy the conscience of the chancellor that good faith has been exercised and that the confidence reposed in the beneficiary of the contract has not been betrayed by him. Beach v. Wilton, supra, and authorities there cited.

"The circumstances connected with the execution of the deed in question, as disclosed by the evidence, are: Appellant called upon an attorney and had him prepare

a deed. After having the deed written up, the appellant telephoned Sidney Bagley and asked him to come over to the house. Bagley was a justice of the peace. He went to appellant's house and after consulting with appellant a notary public was called. The matter of executing the deed was discussed by appellant, Bagley and the notary public. The deceased was in another room. After the matter had been talked over among the three parties Bagley entered the sickroom where the old lady was and presented the deed to her and she made her mark, and thereupon Bagley placed a silver dollar in her hand, which had been given him a few minutes before by appellant. J. E. Keisling, the notary public, says that after the deed was executed it was read over to Mrs. Spruill, and Bagley says that he asked her, before she made her mark to the deed, if she wanted to give the land, or deed the land, to appellant, and was answered, 'Yes.' Thereupon the notary added his certificate of acknowledgment and the deed was handed to appellant. Before the execution of this deed Mrs. Spruill had made a will in which she disposed of all her property, including the land in controversy. By her will appellant was given 11/20ths of the estate and the balance was disposed of among other relatives.

"When all of the circumstances surrounding this transaction are considered we can come to no other conclusion than that reached by the court below, that there was here an unusually intimate fiduciary relation existing between these parties, and that the conveyance to appellant of substantially all of the property that the deceased owned must be held to be the result of a violation of the confidence and trust reposed by this old lady in appellant. At all events, the evidence introduced on behalf of appellant fails to convince us, any more than it did the chancellor below, that this transaction is free from any suspicion of undue influence.

"The deed contains a covenant on the part of appellant that she would take care of Mrs. Spruill as long as she lived and provide her with a good home, board, food, shelter and care during her life. Appellant contends that

even though the court properly set aside the deed it was error to set it aside unconditionally, without requiring the payment to appellant of reasonable compensation for taking care of the old lady from the time the deed was executed until her death. The evidence shows that notwithstanding this covenant in the deed appellant continued to demand of Brown compensation for taking care of the old lady at the rate of $10 per week under her contract. Numerous letters written by appellant to Brown demanding money are in the record. The last of these was about two weeks before the death of Mrs. Spruill. This evidence shows that appellant was relying on her contract for compensation for taking care of the deceased, and that she did not furnish her a home, board, food and shelter as a consideration for the conveyance. If appellant has any claim against the estate, under her contract with Brown, for compensation she has not been deprived of that by the decree in this case. There was no error in the decree in this respect.

"There being no error in the decree of the circuit court of Fayette county it will be affirmed.-Decree affirmed."

Question 79: What is undue influence? What is its effect upon a contract? Under what circumstances is undue influence presumed? In such cases is the presumption rebuttable? How? Was there undue influence in this case?

(d)

Disaffirmance and Avoidance of Contracts Voidable for Foregoing Reasons.

§ 79. (Contracts, Sec. 47.) Conditions of disaffirmance.

Case 80. Naugle v. Yerkes, 187 Ill. 358.

MR. JUSTICE HAND: One who desires to rescind a contract for fraud must act promptly and at once tender back what he has received under the contract, and if he remains silent or in any way recognizes the validity of the contract after discovering the alleged fraud, he is bound thereby."

Question 80: If one desires to set aside a contract voidable for fraud, must he give back what he has received? Would this also be true of contracts voidable for duress and undue influence?

(Note: Conditions of disaffirmance: In order to disaffirm a contract voidable for fraud, duress or undue influence, the party seeking to set aside the contract must show :

(1) That he has not ratified the contract by acquiescence or by any words or conduct.

(2) That he has restored, offered to restore or now offers to restore what he received. His inability to restore is generally no excuse.)

§ 80. (Contracts, Sec. 48.) Ratification.

Case 81. Burwash v. Ballou, 230 Ill. 34.

MR. CHIEF JUSTICE HAND:

"The sale of the stock in question was made on July 15, 1903, and the bill was not filed until August 3, 1904. In the bill of complaint appellant alleged that shortly after the payment of the second note, which fell due September 15, 1903, and which presumably was paid when due, he was put upon inquiry as to the conspiracy and fraudulent agreement entered into between the appellees and others, whereby complainant was induced and persuaded to purchase said seven thousand shares of stock; and again, that about February 1, 1904, complainant was for the first time informed and became aware that some of the representations and statements made to him by appellees were false. The rule is, that a party who desires to rescind a sale for fraud must act promptly; that he cannot be permitted to stand passively by and speculate as to the result of an investment, especially an investment in mining stock, which usually fluctuates in value, and, after the future has disclosed his investment was a mistake, rescind the contract of purchase for fraud and recover back the consideration paid for the stock. Greenwood v. Fenn, 136 Ill. 146; Follett v. Brown, 188 id. 244; Coolidge v. Rhodes, 199 id. 24; Brymes v. Sanders, 93 U. S. 55."

Question 81: Is delay in withdrawing from a voidable contract, a ratification of it? What were the facts in the above case and did they amount to ratification?

Case 82. Tarkington v. Purvis, 128 Ind. 182.

Facts: On August 15, 1887, Jos. S. Tarkington, exchanged his interest in the firm of T. H. Ellis & Co., hardware dealers, for certain real estate and $600 in cash, with Sanford B. Purvis, who agreed to pay Tarkington's share of the firm's indebtedness. Tarkington falsely represented that the assets of the firm were largely in excess of its liabilities. As a matter of fact, the reverse was true, so that Tarkington's interest was of no value whatever. On August 27th Purvis discovered the fraud practiced upon him and immediately demanded rescission, tendering back all he had received. On August 30, Purvis received $341 in cash out of proceeds arising from a sale of some of the assets of the firm, such sale being evidently made to prevent waste of the assets. On September 1st, he again demanded rescission, offering also this $341 collected by him. It is contended that in dealing with the partnership property in the manner shown the plaintiff ratified the contract.

Point Involved: What facts constitute ratification of a fraudulent contract? Dealing with the subject matter as ratification.

MITCHELL, J.: "The doctrine is fully established that a contract induced by fraud is only voidable, and if one who has been defrauded after discovering the deceit acquiesces in the sale either by express words or by any unequivocal act, such as treating the property as his own, with an intent to condone the fraud, he will be deemed to have elected to affirm the contract, and he cannot afterwards rescind. One who, uninfluenced by the fraud, deals with the property as his own, after having fully discovered that fraud has been practiced upon him in the contract or transaction by or through which he acquired the property, thereby waives his right to rescind. St. John v. Hendrickson, 81 Ind. 350; Higham v. Harris, 108 Ind. 246, 5 West. Rep. 643; Worley v. Moore, 97 Ind. 15; Doherty v. Bell, 55 Ind. 205; Gatling v. Newell, 9 Ind. 572; Comparet v. Hedges, 6 Blackf. 416; Shaeffer v. Sleade, 7 Blackf. 179; Benjamin, Sales, sec. 675.