W. CHRISTY BRYAN, Special Judge
This is a suit by respondents, claiming under the will of Rachel Botts, deceased, to set aside and cancel a deed made by their said testatrix to appellant, by which, for a recited consideration of $300, she conveyed to appellant, subject to a life estate reserved to herself, the south one-half of lot Six in Block One, Kemper’s Addition to the city of St. Joseph, Buchanan county, Missouri.
The grounds on which relief is sought are:
1st. That the grantor, owing to old age and illness did not have mental capacity to make said deed.
[266]*2662nd. That said deed was procured by fraud and undue influence exerted by tbe appellant and bis wife,, and that tbe alleged consideration was never paid, and was never intended to. be paid.
As the petition sufficiently presents the issue it is not set out at length.
The answer admits the ownership of the property involved in the suit in Rachel Botts, January 7, 1907, the date of the deed, pleads the purchase thereof by appellant by deed, in which the consideration was $300, subject, however, to a life estate reserved to the grantor, pleads a contract entered into the same day between the appellant and bis wife, as parties of the first part, and Rachel Botts, as party of the second part. It further alleges the payment of three monthly installments under said contract, aggregating thirty dollars, “when the said Rachel Botts suddenly took sick and died after a six or seven days’ illness; that the said defendant [appellant] was at all times ready, able and willing to carry out the terms of said contract upon bis part, and did all and everything required of him under and by virtue of the terms of said contract.”
Appellant further specifically denied the exercise of undue influence “upon the said Rachel Botts to induce her to enter into said contract and to execute said' deed, either by himself or by any other person,” and alleged “that said sale and said contract was the idea of said Rachel Botts and was her desire, and that defendant was induced against his will to enter into said contract; that the said Rachel Botts at the time of entering into said contract and deed of conveyance was strong and able-bodied save and excepting a lameness in her left shoulder caused by an accident; was unusually bright and intelligent,' far above the average of her class; that she left no descendants, and sought by this conveyance and this contract to protect herself against want in her old age and the [267]*267cares and worry entailed by the ownership of the property; that all and everything that was done and said in and about the making of said contract, was fairly and honestly done with the only desire upon the part of this defendant or any one acting with or for him to grant the wish and desire of the said Eachel Botts in the disposition of her property and for her "maintenance and support.”
The evidence showed that the deed and contract above referred to were executed by said Eachel Botts on the 7th day of J anuary, 1907, and the deed recorded January 14, 1907. The will, under which respondents claim, was executed on February 15, 1904, according to the petition (the will was not preserved in the record, but there was no dispute about it). By its terms it left to the respondents the same property that was conveyed to the appellant by the deed. Eachel Botts died April 7, 1907.
The deed was a warranty deed in usual form, so will not be set out. It is sufficiently described in the first paragraph of this statement. It conveyed the property “subject to a life estate, hereby reserved to the grantor.”
CONTRACT.
“This contract, made and entered into this 7th day of January, 1907, by and between W. B. Polk and Lillian S. Polk, parties of the first part, and Rachel Botts, party of the second part, witnesseth:
“Whereas, the parties of the first part are husband and wife, and the party of the second part has this day made to the said husband, W. B. Polk, her warranty deed in and to the south half of Lot Six, in Block One, Kemper’s Addition to the City of Saint Joseph, Buchanan county, Missouri, for and in consideration named therein of three hundred dollars; and ‘Whereas, the said party of the second part wishes an adjustment of said named consideration, as a sort of a monthly income to her so long as she lives; and
“Whereas, owing to the kindness and affection existing between the parties, it is desired that after the -death of the party of the second part, the parties of the first part shall incur no further liability on account of said consideration:
[268]*268“It is, therefore, by the parties hereto agreed as follows, to-wit: The parties of the first part agree henceforth from date to pay all taxes on said real estate; the party of the second part agrees to keep said real estate in repair out of the monthly rents and profits derived therefrom, and shall cause and incur no expenses or liens, other than taxes, against said property. The parties of the first part hereby agree to pay to the said party of the second part, on the first day of each and every month henceforth, the sum of ten dollars until the sum of three hundred dollars shall have been paid and no longer, in case the said party of the second part shall so long survive. In case that the said party of the second part should die before the said amount of three hundred dollars is paid, in monthly installments of ten dollars per month, then the balance, if any, between the total of the amount so paid in installments and the three hundred dollars consideration is thereby paid, the contract of the parties hereto being that the parties of the first part shall pay three hundred dollars in ten-dollar installments, monthly, to the extent of three hundred dollars, in case the party of the second part so long survives, but should she sooner die, shall only pay ten dollars per month so long as the said second party shall live; in either event, the fullfillments of said payments in accordance herewith by the parties of the first part, shall be full consideration and liquidation of said three hundred dollar debt. If the parties of the first part shall fail to make any one monthly payment for a period of thirty days after the same is due and ought to be paid then the whole of the amount of said three hundred dollars still owing in case the said party of the second part shall be living shall become due and payable, and an action for the whole of the balance of said amount will at once lie.
IN CONSIDERATION WHEREOF, the parties hereto have signed their names the day and years first above mentioned, in duplicate.
her
RACHEL X BOTTS mark.
W. B. POLK.
LILLIAN S. POLK.
Witnesses to mark
Mrs. T. L. PEPPERELL,
T. L. PEPPERELL.
The appellant W. B. Polk, the- grantee in the deed and one of the parties of the first part in the contract, is the husband of Lillian S. Polk, so frequently referred to in the evidence and the other [269]*269party of the first part in said contract. As the parties and the trial court treated them practically as both liar ties to the deed and contract, we likewise do not make a distinction.
The evidence as to Rachel Botts’s age is conflicting, her age varying by almost twenty years, according to different statements. The respondents’ witness Cohron stated she was between eighty or ninety, while the witness (also respondents’) who had known her longest, to-wit, Harvey Montgomery, testified that in 1847, when he was sixteen, she must have been nineteen or twenty; this would make her seventy-nine or eighty.
The respondents’ witnesses, testifying to her mental capacity, testified largely by conclusions. The witness Cohron stated: “She was .easily confused and very — well, very forgetful. . . Seemed to show a good deal — well didn’t know just what to do with herself and with things; she was bothered about her business. Seemed to have an unsettled mind as to what was the best thing to do.”
“Mr. Gabbert: We object to conclusions.”
When pressed for a specific illustration he testified: “Well, now, with reference to her property; she told me she wanted to sell her place; that she had been offered $300 for it. . The -next time I saw her she said she was going to sell it; and and when 1 saw her again she said that the parties would give her $500 for it. They was to give her $300 — I don’t think she knew just what she sold the place for. Then she said the parties thought we would buy it, and when I saw her she said that the parties were continually after her about it, and kept her so confused about it that she didn’t know just what to do.”
If these facts, as distinguished from the opinion of the witness, are true, and there was no evidence introduced to the contrary, they are not evidence of incapacity, but, on the contrary, to our mind show that she considered not once but several times the [270]*270question of selling lier property; that she had several offers for it, and was in doubt — the same kind of doubt that any one might he in — as to which was the best deal for her to make. This statement on three separate occasions also shows a fixed intention of selling.
This. witness also testified that Mrs. Polk, after Mrs. Botts’s death, assumed the doctor’s hill of thirty-eight dollars, the undertaker’s bill of sixty-three dollars, the druggist’s bill of four dollars and something, and the nurse’s hill of ten dollars, aggregating more than $115.
Another witness for respondents, Mrs. Sarah Wilson, testified: “She” (meaning Mrs. Botts) “complained of her head just before she died, and had rheumatism a good deal.” (The italics are ours). . . “Mrs. Botts complained of having rheumatism the whole time I knew her, fifteen years.”
This witness also testified: “Well, sometimes she would say she wanted the church to have it (meaning her property] and sometimes she wanted somebody else to buy it; she rather deferred to Mrs. Polk; she msisted upon Mrs. Polk buying it.. . . She said that Mrs. Polk knew her and was a good friend of hers.” (The italics throughout the statement are ours).
This testimony of respondents’ witnesses also shows that Mrs. Botts was the one who desired the sale, not Mrs. Polk. Further Mrs. Wilson’s testimony is:
“Q. How often was Mrs. Polk there? A. I don’t know just how long. It was evéry day during her illness.”
This evidence affords a reason for the third premise in the contract relating to the consideration of kindness and affection.
This witness testified: “I found her [Mrs. Botts] being lost once, and she told me of being lost the second timé. . . She was just this kind of a person; [271]*271she was old and feeble; sbe didn’t know one car from another;' if she didn’t take care, she didn’t know where to get off. . . Q. She always had to have somebody go with her? A. No, sir. Q. Grandma ■wouldn’t trust Cohron and these other trustees and ■only trusted Mrs. Polk? A. She seemed that way; I don’t know. . . Q. Grandma had saved $87.50 in money, hadn’t she at the time of her death? A. I think she did. Q. Were yon there at that time; at the time of her death? A. Yes, sir. Q. She turned that money over to Mrs. Polk? A. She turned that to he put in the hank; that is what she said; I heard the conversation. Q. She said often that she would will this property to the church; but she had a notion to sell it? A. I don’t know whether she had a notion to sell it or not. She said that the parties that want■ed her to sell it might beat her, maybe. Q. If anybody wanted to buy it, she wanted Mrs. Polk.to have it? A. She didn’t exactly say that; she wanted Mrs. Polk to huy the place; she said that she wanted Mrs. Polk to huy the place. Q. Do yon think she was insane because of making that statement after she wilíed the property to the church, then she intended "to sell it? A. Well, I wouldn’t say exactly insane; but she was-like most old people, her mind was very ■easily overpersuaded by some one else.”
This by another of respondents’ witnesses shows also two things: 1st. That Mrs. Botts wanted to sell’ the property, and, 2nd, that she wanted Mrs. Polk ■of all people to have it.
Mrs. Lizzie Allen, another witness for respondents, iterated and reiterated, “.She' [meaning Mrs. Botts] didn’t have mind or memory,” but when pressed for specific instances' testified that Mrs. Botts once made a mistake regarding the denomination of -a, bill.
• The Court: Tell me something that she did. A: Well, in money line, when I would come back, she [272]*272would say it was a two-dollar bill, and I bad changed it and banded back tbe change to her; ‘Mrs. Allen, yon give me too much money.’ I said, ‘You give me a five-dollar bill.’ ‘I didn’t, I give you a two-dollar bill.’ ‘"Well, did you have paper or five dollars in change.’ So she felt like she-'had only — she didn’t give me five dollars; she kept that; but she give me a two-dollar bill; she thought it was a two-dollar bill that she gave me.”
This shows, too, the grantor knew how to correctly count money and the correct change due from the different bills, even if she had mistaken one bill for another.
“A. She often ivenb by herself; go down town and she would walk down and I would say, ‘Grandma, why didn’t you ride back; you walked down,’ and Grandma would say, ‘I aint got any memory;’ she would not know what car to take to get on the car; or she would say, ‘I got lost.’ She never would tell me unless she got lost and I would scold her about it. She didn’t have mind or memory.”
This same witness testified that she remonstrated 'with Mrs. Botts about going out with what she considered insufficient clothing, and thereupon “she would get her shawl and put it around her.” On cross-examination, however, this witness testified that Mrs. Botts took in washing, did her own work, and in fifteen years the witness went only four times with Mrs. Botts to collect her pension. She also testified:
“Q. Now, how did you know that her time had come to draw her pension‘d A. • She told me when it was time. Q. She came and told you it was pension dayf A. Yes, sir. . . . Q. I am talking about her memory; I am talking about her failing mind; did you know of her acting crazy? A. No, sir. Q. Was she considered in that community at that time— Did you ever hear that she was a crazy old negro ? A. Ño, sir, I never heard she- was crazy. . . Q. She [273]*273always remembered pension time, didn’t sbe? A. Sometimes sbe would; and sometimes sbe wouldn’t. Q. When was it that sbe did not? A. I said once,, ‘Grandma is today pension day?’ sbe says, ‘No.’ ‘Not tbe 4th when you draw your pension?’ Sbe says, ‘Yes.’ ‘How often do you draw it?’ ‘Every three months when I remember.’ ‘It has been over three months now.’ ‘Well,’ sbe says, ‘The doctor hasn’t done it.'’ Q. Sbe always left it with Dr. Crosslandt A. Yes; always go out for her. Q. Sbe remembered it was tbe 4th all right. A. Yes, tbe 4th. Q. And remembered that Dr. Crossland attended to her business and be hadn’t been down there to see her? A. Yes, sir. Q. This was pension day? A. Yes, sir. . . Q. It was her pension day? A. Yes, sir. Q. Sbe knew what day of tbe week and what day of tbe month? A. Yes, sir. Q. Well, Grandma rented these two rooms to Riley Hill? A. Yes sir. Q. Collected tbe rent for' tbe rooms? A. Yes, sir. Q. Did. her own washing? A. Yes, sir. Q. Made her own living? A. Yes, sir. Q. Did her own cooking? A. Yes, sir. Q. Lived alone? A. Yes, sir. Q. Hp until tbe time of her death? A. To her death. Q. And sbe trusted in — and bad faith above every one else in Mrs. Polk? A. Yes,- sir. Q. Sbe said that, didn’t sbe? A. Yes, sir. Q. Sbe said that didn’t sbe? A. Sbe said that Mrs. Polk was her friend. . . Q. Grandma was washing until about two weeks of her death, wasn’t sbe? A. She-washed that week for Mrs. Polk.”
Mrs. J. T. Wilson, on cross-examination testified: “Q. You think sbe was insane? A. I don’t think Mrs. Botts was insane; I know Mrs. Botts was old;. I think about eigbtv-nine years old; somewhere along there; I called on her before sbe was very weak and I have gone to tbe door and have stayed with her a while. Q. Sbe was afraid? A. No, she was not [274]*274afraid, naturally just a little nervous. Q. She would send for people to read her tax bills; she could not read and she was afraid somebody would heat her? A. If she didn’t know people. She always turned to me. Q. How many other things did you ever read to her? A. I have read her letters considerable times. Q. Read them over to her several times? A. Only had to but once. . . Q. She understood what a tax hill was? A. She knowed it was a back tax, I suppose.”
This same witness testified that Mrs. Botts once was out in a pouring rain with a parasol which she had not raised. “Q. Grandma always knew you, didn’t she? A. Yes, she always knew me; I am not saying that Mrs. Botts was insane; I say that she was a child in age; she had gone back to her childhood; anybody could persuade Mrs. Botts to do anything. Q. How do you know? A. Well, because I have talked to her of things, concerning her property; I would come over and she would be ironing napkins and she would be complaining, maybe, two or three days about taking medcine; ‘Why do you do this, you have got a pension; you are not compelled to do this?’ ‘I have always worked, and if I didn’t do it, I believé I would get so I wouldn’t get up;’ I said it is injurious to you; if I was you I would sell my property and live off the money. She says, *'Z have got no child in the world to give it to — no relative to give it to; I want the church to have my property;’ she says, ‘Of course I could sell my property, I want to get the cash money.’ What was done afterwards, I don’t know. Q. That doesn’t show that anybody had influenced her; you say that she.was easily influenced and you tell of these transactions that shows a pretty wise head so far as influencing her to do things; do you know of any incident where any one influenced her to do anything? A. I don’t know of any incident; I can’t remember. Q. You cannot re[275]*275member an instance? A. All I know — Q. Do yon know of a single instance where any one ever influenced her to do anything — one incident; when anybody influenced her to do anything? The. Court: Do you remember of an instancef A. No, sir.”
Riley Hill, another witness for the plaintiff, testified about the same as Mrs. Wilson. He added that sometimes Mrs. Botts was nervous and had difficulty in dressing herself because of her shoulder. Got her own meals and sometimes got his.
Mrs. Mary Harvey tetified Mrs. Botts discussed with her the question of building a double tenement on her property; and that Mrs. Botts, with the alternatives in her mind of giving the property to the church or to the old ladies’ home, said she believed she would sell the property. (Italics Ours).
Dr. Crossland testified: “Mrs. Botts during the last year and a half of her life was very feeble; memory was not good; she was not in the best shape mentally; she had suffered with a stroke of paralysis. She finally had an abscess' on the brain and died of paralysis of the brain — apoplexy. Q. As physician, and acquainted with her and acting as her attending physician, I will ask you, whether in your opinion, she was capable of transacting business, such as making a sale of real estate and getting the money consideration for it on January 7, 1907? A. That was a month or two before she died. I should not judge she was. I do not think she would be.”
On cross-examination, however, he testified:
“Q. Now, upon what do you base your statement she would not have knowledge enough to sell her property and receive the money for it? A. Well, I will tell you; she said to me several times prior to that that she was going to give her property — to let the church have it — take care of some old people, and then about January, 1907, or possibly before that or a little after thát, she said to me, she wanted to. sell the property; [276]*276wanted me to buy it for $475; I said to her, ‘Now, I don’t want this property, and unless you can go and get a brother belonging to the church that you can deal with — to agree upon it, that you know can take it alone — I knew in my position with her if I would bought the property, I would get in a box. Q. When did you get in trouble with the church? A. Well, I knew she had stated that she- wanted the church to-have it; and I told her that she could not sell it tome ; and she said she didn’t think about that or made some kind of a reply; I wouldn’t have anything to do with it.”
The evidence also showed she received five dollars a month for rent of rooms to Biley Hill and a pension of twenty-four dollars quarterly.
Bespondents offered no evidence as to the testatrix’s mental condition at the time she executed the deed and contract.
The testimony quoted has been that of the respon-ents’ witnesses. We have not attempted to give it all, but it was all of the character as that given, and we have given a fair sample of it.
The testimony of the appellant supports the answer and was to the effect that the testatrix was a woman strong mentally and physically, shrewd about money matters, and had always been able to support herself and conserve her property. It coincides with and confirms the testimony of the respondents to the effect that Mrs. Botts was anxious to sell the property, and that she was anxious for Mrs. Polk to have it, and that the idea of selling it to Mrs. Polk washer own. Appellant’s testimony also shows that Mrs-Polk had been her friend for fifteen years; had nursed her and fed her when she was sick; was with her during her last illness; was the one Mrs. Botts, when on her death bed, singled out among the women present to whom she turned over eighty-seven dollars that, she had in her -pillow, and confirms and corroborates; [277]*277the respondents’ witnesses who said that Mrs. Botts gave the money to Mrs. Polk. Thus showing that Mrs. Botts even in extremis was perfectly lucid and knew where she kept her money, how mnch it was, what she wanted done with it, and to whom she wonld entrust it. The notary and witnesses present at the execution of the deed and contract testified she thoroughly understood them and said they were just what she wanted.
This case is distinguishable from the case of Jones, Exr., v. Belshe, 238 Mo. 525 1. c. 540, relied on Setting Aside Deed: Incapacity: Fiduciary Relation: Fraud. by respondents. There the testator left descendants, did not know the defendants, who were newcomers in the town and not related to him, and were strangers to him until he went to their hotel to board. He made the deed to them when practically in their custody, and, when rescued from them, repudiated the deed under which they claimed. In the case at bar, Mrs. Botts never lived with Mrs. Polk, and never was in her custody, and the evidence clearly shows that the making of this deed was not the result of temporary caprice or of a fleeting intention, but that she had discussed it (and the respondents’ own evidence shows this) for. more than a year with various people and on different occasions when neither Mrs. Polk nor any of her friends was present, thus indicating a fixed intention on her part “of long standing to convey the property in the way she did.” [Jones v. Thomas, 218 Mo. 508.]
It was said in the case of Jones, Exr., v. Belshe, supra, quoting Martin v. Baker, 135 Mo. 1. c. 503:
“Wherever two persons stand in such a relation as that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, [278]*278and this confidence is abused, or the influence exerted to obtain an unfair advantage at the expense of the confiding party, the person so availing himself of the position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation existed.”
It is also said that where a confidential relation is shown to exist between parties to a contract, the burden of proving the bona fides of the contract is on the beneficiary thereof. [Ibid., citing cases.]
And again:
“A contract, therefore, by one of impaired mental and will power with one standing in confidential relations with him should be closely scrutinized to See that no improper advantage has been taken or undue influence exerted. The exertion of undue influence in such ease may be pronounced from the nature of the contract, and from an unfair and unreasonable advantage secured by it.” [Jones v. Belshe, supra, 1. c. 540.]
Where no confidential relation exists the burden is on plaintiff to prove that the grantor in the deed was incapacitated to make it. [McDermeitt v. Keesler, 240 Mo. 278, 1. c. 290.]
There was no direct evidence of undue influence, and if it cannot be inferred from the deed and contract and the relations of the parties, there is none of any kind at all.
Even if we concede for the sake of argument that a confidential relation was shown to exist between the testatrix and Mrs. Polk, and that she and Mr. Polk were the beneficiaries of the transaction, and Mrs. Botts was not, still we think the respondents’ evidence affirmatively refutes the charge and rebuts the inference that there was any undue influence exerted by Mrs. Polk, Mr. Polk, or any one for either; or even that they wanted the deed made. On the contrary the [279]*279testimony of respondents’ own witnesses affirmatively shows that Mrs. Botts was the moving party.
We are by no means prepared to say that the contract itself is of such a character that on it's face it challenges the criticism of a court of equity, or even that it was a had one for Rachel Botts. To our mind there may well he two opinions about it. One or two of the respondents’ witnesses testified they had advised Mrs. Botts to sell the property. She had offered it (presumably the entire interest in it) to Dr. Cross-land for $475. According to a real estate man the value of it in its then condition was between eight and nine hundred dollars, but experience shows that there is a wide difference between what one can get for property when forcing it on the market and what a real estate agent says it ought to bring. If Mrs. Botts had sold the property outright to Dr. Crossland, for $475, or to some one. else for $900, she would have been without a home; while by selling it as she did (and she only sold the remainder) — or giving it, if you please —to her friend Mrs. Polk, she insured herself of an increased income of ten dollars a month for thirty months (making $300 if she lived so long), freedom from harassment for taxes, and enjoyment of the property for the rest of her life, together with the rents she might collect from other occupants. She evidently believed she was making a good bargain, for it was, the one she preferred to make, after deliberating about the matter for more than a year. She had “ample opportunity to consult her friends,” and did consult them and there was “sufficient” locus peniten-tiae. [McClure v. Lewis, 72 Mo. 314; Gibson v. Jeyes, 6 Ves. 278; Evans v. Llewellin, 1 Cox Chan. Cas. 333.] Then, too, her contract was made with a person who, she was morally certain and satisfied, would carry it out according to its spirit, and thus her mind could be at rest. The “delectus personae” had and rightly had not a little to do with it. That she died after re-[280]*280oeiving only three payments no more warrants the setting aside of the deed at the instance of the grantor’s devisees than if she had lived twenty years wonld have warranted the setting aside of it at the instance of the grantee, the refunding of his money and taxes with interest and relief from further obligation because of his deferred enjoyment for that length of time.
Parenthetically, the respondents seem to ignore the fact that only the remainder, and not the entire estate was sold. The deed was on record for nearly three months before the grantor died. She never complained of it nor wanted to recall it.
The contract shows that a part of the consideration therefor was love and affection, and the constant and never-failing kindness and generosity of Mrs. Polk to the grantor afforded ample reason for this feeling. Even after Mrs. Bott’s death Mrs. Polk assumed, according to the Rev. Oohron’s testimony, $115 of her debts.
Had' Mrs. Botts had any relatives, the natural objects of her bounty — and she realized she had not, and commented on the fact more than once — and had she given the property away from them without mentioning them, there might be more reason for questioning the .transaction with Mr. and Mrs. Polk.
Evidence that a person has misplaced or occasionally misplaces articles of clothing while dressing —or even on one or two occasions improperly put on garments — or sometimes, in the opinion of one witness, went out insufficiently protected against the cold, but on reference being made to it immediately repaired to her home and put on a proper wrap — or once or twice mistook the denomination of a bill — especially when unable to read — but at the same time recognized the difference between the change and correctly understood the change for the respective bills under discussion — or on one occasion rode beyond her [281]*281destination on a street car — is not alone sufficient evidence of mental incapacity to justify the setting aside of a deed. Some of the ablest and strongest-minded persons are notoriously absent-minded in these small matters, and if evidence of this kind were sufficient, they could he convicted of incapacity.
• The evidence of respondents’ witnesses in favor of respondents’ claim is largely opinion evidence, hut whatever its value, opinion must yield to the facts on which it is based, especially if those facts are in conflict with and contrary to that opinion and do not support it. In Crowson v. Crowson, 172 Mo. 691, 1. c. 702, it was held that opinions of non-experts not predicated on facts were not sufficient to show incapacity.
While we are mindful of the doctrine that deference is due to the findings of the chancellor (Huffman v. Huffman, 217 Mo. 182; Johnson v. Stebbins-Thompson Realty Co., 177 Mo. 581, and others), “under the practice in Missouri equity cases are substantially triable de novo in the Supreme Court,” and such court “while deferring somewhat to the conclusions of fact reached by the trial courts, has not been bound by its findings of fact nor its conclusions of law thereon, but has ever exercised a supervisory control over both.” [Blount v. Spratt et al., 113 Mo. 48.] “If its findings and judgment” are “not sustained by the evidence and law, then this court” will “proceed to máke its own finding and enter judgment as equity and justice might require.” [Givens v. Ott, 222 Mo. 395, 1. c. 410.] “Otherwise, appeals in chancery causes would be idle formalities.” [Gottfried v. Bray, 208 Mo. 1. c. 663.]
“In general, the cancellation of an executed contract is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case, and never for an alleged fraud, unless the fraud be made clearly to appear.” [6 Cyc. [282]*282336, citing cases, among others, Jackson v. Wood, 88 Mo. 76; Bryan v. Hitchcock, 43 Mo. 527.]
The evidence falls far short of meeting this test even were the complaint made by an heir, a fortiori when we consider it is lodged by a volunteer.
Applying the above rules of law to the evidence in this case, we think the deed should not have been set aside.
There were other questions raised by the appellant, hut in view of our opinion on the merits it is not necessary to decide them. The judgment should be reversed.
Graves, Bond and Faris, JJ., concur; Lamm, G. J., Brown and Walker, JJ., dissent in a separate opinion by Lamm, G. J.; Woodson, J., not sitting.