[329]*329The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Robert Eults against Ephraim Bainter and George Barnett, for the purpose of rescinding, setting aside, and canceling, on the ground of fraud, a certain executed contract, with certain deeds of conveyance, and other matters incidental thereto, whereby Eults exchanged some real estate and personal property belonging to him for some real estate belonging to Bainter. The principal questions discussed by plaintiffs in error are so obscurely and insufficiently presented by the record brought to this court that we think we can hardly consider them at all. The court below finds that the plaintiff below was at the time the alleged fraudulent transaction occurred, “ sixty-nine years of age, illiterate, infirm from age and physical injuries, weak in mind, and incapable of managing his own affairs.” Now how weak in mind was the plaintiff? Was he weak to idiocy, or only slightly weak? We cannot tell from the record. He was “incapable of managing .his own affairs,” but whether from age, illiteracy, physical infirmity, or mental imbecility,'or all, we cannot tell. None of the evidence has been brought to this court, and nothing else shows it. Hence we are left to conjectures and presumptions only. Now, as all presumptions must be construed in favor of the correctness of the findings and judgment of the court below, we must presume in support of such judgment that the plaintiff was extremelyiweak in intellect, mentally so weak as to be “incapable of managing his own affairs,” weak even to the very verge of idiocy; for mental weakness would best excuse him. The court below further finds that—
“On the 19th of October 1,871, Bainter and Barnett went to the farm where Fults lived, and contrived and conspired to cheat and defraud the plaintiff and obtain his property to their own gain and advantage, well knowing that plaintiff at that time was not capable of managing his own affairs; and by means of false and fraudulent representations induced him to agree to exchange the farm in the first paragraph herein described, [Eults’s farm,] and to. pay to the said Bainter in [330]*330addition as boot-money $1,000 in property, live stock, which Bainter was to have the privilege of bidding off at auction while the sale was progressing, and did bid off to the value and amount of $947.
“On the 11th of November 1871, under threats of vexatious litigation, (because of the refusal of plaintiff and his wife to make a deed,) deeds were made and exchanged,” etc. Fults gave a deed for his farm to Bainter, and Bainter gave a deed for his property to Fults.
1.presumptions judgment.
2 General findings.
[331]*331
3.Fraudulent bena£nuuS?y
4 Liability for equityTand
[330]*330Now, how did the defendants “contrive and conspire to cheat and defraud the plaintiff?” -And what were the “false and fraudulent representations,” which they used to effect their purpose? We cannot tell from the record of the case; but in order to sustain the judgment of the court below, we must presume that they were such as would authorize the rescinding of the whole transaction. The counsel for plaintiffs in error claims that all these matters should have been set out in the findings of the court, in elaborate detail. He claims that the supposed false and fraudulent representations should have been set out in the findings, so that we could see whether in fact and in .law they were such as would authorize the rescinding of the contract. But the defendants below did not ask the court to set out these matters in its findings. They did not ask the court to make special findings on any subject. Neither they, nor plaintiff, ask the court to make any findings of any kind. It is therefore the misfortune of the plaintiffs in error, and not of the defendant in error, that the findings do not state the facts in more elaborate detail. It devolves upon the plaintiffs in error to show error, and not upon the defendant in error to show that there was no error. Under the circumstances of this case, we think all the necessary facts in this respect are stated in the findings, although stated in very general and comprehensive terms, and therefore we think the findings in this respect are sufficient. Therefore, up to this point we cannot say that the court below committed any error.
We think that where two men “contrive and conspire to [331]*331cheat and defraud” a weak old man, mentally so weak as to be wholly “incapable of managing his own affairs,” and by “false and fraudulent representations” do cheat and defraud him, and thereby obtain his property for a grossly inadequate consideration, a court of equity may set aside and cancel all contracts or instruments by which these two men hold the old man’s property, and may place the parties in the same situation and condition in which they were before the fraudulent transactions occurred. The irrelevant findings complained of by plaintiffs in error, cannot prejudice their substantial rights, and therefore are not sufficient grounds upon which to assign error. Barnett does not seem from the record to have got any of the plaintiff’s property. He made nothing out of the transaction,’ an<^ is n°t a party to either of the deeds. Therefore, the judgment rendered against him is erroneous. If the action had been one in the nature of an action at law for damages,, instead of one in the nature of a suit in equity to set aside the contract and deeds, etc., and to place the parties in their original situation, it would have been different. If the plaintiff had sued for damages, he could have recovered damages against both Barnett and Bainter.
5. Property; when treated as money.
Under the facts of this case we are inclined to think that the plaintiff had the right to elect to consider the personal property transferred from himself to Bainter, either as the specific articles transferred, or as the $947 in ~ . , . . . 1 money tor which such articles were taken. Hence; there was no error in rendering judgment against Bainter for that amount of money with interest. No question is made that the articles were not worth the money, and they were taken in lieu of the money.
[332]*332
3 Fraudulent R°enr¿cináld m toto.
[331]*331As this was an action to rescind the contracts made between the parties, and to place them in their original situation and condition, it was error for the court below to so render the judgment that the plaintiff could, if he should choose, retain all the property that he received from Bainter, and still recover [332]*332from Bainter for the amount of personal property which Bainter received from the plaintiff, Bainter was called into court to have the question determined, whether the transaction between himself and Fults, should be set aside, and each take the property he originally had. Bainter may have cared but little if such should be done. He may have been willing for Fults to make his own showing in such a case.
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[329]*329The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Robert Eults against Ephraim Bainter and George Barnett, for the purpose of rescinding, setting aside, and canceling, on the ground of fraud, a certain executed contract, with certain deeds of conveyance, and other matters incidental thereto, whereby Eults exchanged some real estate and personal property belonging to him for some real estate belonging to Bainter. The principal questions discussed by plaintiffs in error are so obscurely and insufficiently presented by the record brought to this court that we think we can hardly consider them at all. The court below finds that the plaintiff below was at the time the alleged fraudulent transaction occurred, “ sixty-nine years of age, illiterate, infirm from age and physical injuries, weak in mind, and incapable of managing his own affairs.” Now how weak in mind was the plaintiff? Was he weak to idiocy, or only slightly weak? We cannot tell from the record. He was “incapable of managing .his own affairs,” but whether from age, illiteracy, physical infirmity, or mental imbecility,'or all, we cannot tell. None of the evidence has been brought to this court, and nothing else shows it. Hence we are left to conjectures and presumptions only. Now, as all presumptions must be construed in favor of the correctness of the findings and judgment of the court below, we must presume in support of such judgment that the plaintiff was extremelyiweak in intellect, mentally so weak as to be “incapable of managing his own affairs,” weak even to the very verge of idiocy; for mental weakness would best excuse him. The court below further finds that—
“On the 19th of October 1,871, Bainter and Barnett went to the farm where Fults lived, and contrived and conspired to cheat and defraud the plaintiff and obtain his property to their own gain and advantage, well knowing that plaintiff at that time was not capable of managing his own affairs; and by means of false and fraudulent representations induced him to agree to exchange the farm in the first paragraph herein described, [Eults’s farm,] and to. pay to the said Bainter in [330]*330addition as boot-money $1,000 in property, live stock, which Bainter was to have the privilege of bidding off at auction while the sale was progressing, and did bid off to the value and amount of $947.
“On the 11th of November 1871, under threats of vexatious litigation, (because of the refusal of plaintiff and his wife to make a deed,) deeds were made and exchanged,” etc. Fults gave a deed for his farm to Bainter, and Bainter gave a deed for his property to Fults.
1.presumptions judgment.
2 General findings.
[331]*331
3.Fraudulent bena£nuuS?y
4 Liability for equityTand
[330]*330Now, how did the defendants “contrive and conspire to cheat and defraud the plaintiff?” -And what were the “false and fraudulent representations,” which they used to effect their purpose? We cannot tell from the record of the case; but in order to sustain the judgment of the court below, we must presume that they were such as would authorize the rescinding of the whole transaction. The counsel for plaintiffs in error claims that all these matters should have been set out in the findings of the court, in elaborate detail. He claims that the supposed false and fraudulent representations should have been set out in the findings, so that we could see whether in fact and in .law they were such as would authorize the rescinding of the contract. But the defendants below did not ask the court to set out these matters in its findings. They did not ask the court to make special findings on any subject. Neither they, nor plaintiff, ask the court to make any findings of any kind. It is therefore the misfortune of the plaintiffs in error, and not of the defendant in error, that the findings do not state the facts in more elaborate detail. It devolves upon the plaintiffs in error to show error, and not upon the defendant in error to show that there was no error. Under the circumstances of this case, we think all the necessary facts in this respect are stated in the findings, although stated in very general and comprehensive terms, and therefore we think the findings in this respect are sufficient. Therefore, up to this point we cannot say that the court below committed any error.
We think that where two men “contrive and conspire to [331]*331cheat and defraud” a weak old man, mentally so weak as to be wholly “incapable of managing his own affairs,” and by “false and fraudulent representations” do cheat and defraud him, and thereby obtain his property for a grossly inadequate consideration, a court of equity may set aside and cancel all contracts or instruments by which these two men hold the old man’s property, and may place the parties in the same situation and condition in which they were before the fraudulent transactions occurred. The irrelevant findings complained of by plaintiffs in error, cannot prejudice their substantial rights, and therefore are not sufficient grounds upon which to assign error. Barnett does not seem from the record to have got any of the plaintiff’s property. He made nothing out of the transaction,’ an<^ is n°t a party to either of the deeds. Therefore, the judgment rendered against him is erroneous. If the action had been one in the nature of an action at law for damages,, instead of one in the nature of a suit in equity to set aside the contract and deeds, etc., and to place the parties in their original situation, it would have been different. If the plaintiff had sued for damages, he could have recovered damages against both Barnett and Bainter.
5. Property; when treated as money.
Under the facts of this case we are inclined to think that the plaintiff had the right to elect to consider the personal property transferred from himself to Bainter, either as the specific articles transferred, or as the $947 in ~ . , . . . 1 money tor which such articles were taken. Hence; there was no error in rendering judgment against Bainter for that amount of money with interest. No question is made that the articles were not worth the money, and they were taken in lieu of the money.
[332]*332
3 Fraudulent R°enr¿cináld m toto.
[331]*331As this was an action to rescind the contracts made between the parties, and to place them in their original situation and condition, it was error for the court below to so render the judgment that the plaintiff could, if he should choose, retain all the property that he received from Bainter, and still recover [332]*332from Bainter for the amount of personal property which Bainter received from the plaintiff, Bainter was called into court to have the question determined, whether the transaction between himself and Fults, should be set aside, and each take the property he originally had. Bainter may have cared but little if such should be done. He may have been willing for Fults to make his own showing in such a case. He may have cared but little if the court should render a judgment in substance that the parties should “trade back.” He may have cared but little for a jury trial in such a case as this, and in this kind of action he would not be entitled to a jury trial. And therefore, he may have contested this action but slightly. While if he had known that the judgment was finally to be rendered as one substantially for damages, he may have cared a great deal. In such a case he might have desired to have a jury trial, and if the action had been one for damages, he would have been entitled to a jury trial. He may have considered the property he gave worth as much as the property he received, and therefore might have been willing for a re-exchange of the property, but not willing that a judgment for a large amount of damages should be rendered against him. Now a plaintiff who prosecutes an action for relief, on the ground of fraud, should not prosecute one kind of action up to the very last moment, and then without notice or warning to the other party take a judgment as though his action was a different kind of action. The plaintiff in his petition states among other things as follows: “This plaintiff further shows that he has always been, since the discovery by him that the representations so made as aforesaid by said defendants were falsely and fraudulently made, willing to reconvey to said defendants all the right, interest, and everything whatsoever conveyed by said defendants to this plaintiff, upon reconveyance to him of the real estate and personal property hereinbefore mentioned, and now here offers so to do.” This was a standing offer of the plaintiff up to the time of the rendition of the judgment, and the judgment ought [333]*333not to relieve the plaintiff from fulfilling this offer. Nothing less than the fulfillment of said offer would be right or equitable in a case of this kind.
The judgment of the court below will be reversed as to Barnett. And it will be modified as to Bainter as follows: Bainter shall within some reasonable time to be fixed by the court below, pay to said Eults said $947, and interest, and shall convey to Fults by a good and sufficient deed, all the said real estate heretofore conveyed by Fults to Bainter, but upon this condition only, that Fults shall first convey to Bainter, by a good and sufficient deed all the said real estate conveyed by Bainter to Fults. In all other respects the judgment of the court below will be affirmed. This case will be remanded to the court below for further proceedings in accordance with the views herein expressed.
All the Justices concurring.