Lewis, P.,
delivered the opinion of the court.
This was a suit in equity in the circuit court of Franklin county, to cancel a conveyance made in September, 1880, by Isham M. Ferguson, since deceased, of certain real estate situate in Big Lick, now the city of Roanoke. After many depositions had been taken in the cause, the court directed the following issues to be tried by a jury, namely—
1. Whether the deed in question was obtained by the defendants, Fishburne and wife, the grantees therein, by fraud or undue influence; and, 2, whether or not, at the time the deed was executed, the grantor was incapable by reason of disease, old age, or other cause, of clearly understanding its purport and object; upon the trial of which issues, the complainants were given.the right to open and conclude.
After hearing the evidence, the jury returned a verdict for [101]*101tlie complainants on both issues. But, at the suggestion of the court, assented to by counsel, that the evidence showed the defendants to be of good character, and that the object of the complainants would be as well accomplished by a finding in their favor on the second of the issues alone, the jury amended their verdict, so as to find for the defendants on the first, and for the complainants on the second.. The defendants after-wards moved the court to set aside the verdict, and to decree in their favor, notwithstanding the verdict, but the court overruled the motion, and entered a decree cancelling the deed, and ■ordering possession of the property in controversy to be surrendered to the complainants. From this decree the defend.ants appealed.
It does not appear from the record that objection was made by either party in the court below to the awarding of an issue; but the appellants now contend that the action of the court in this particular was erroneous. We are of opinion, however, that this position is not well taken. This court has repeatedly ■decided that the awarding of an issue out of chancery rests in sound discretion, subject to review on appeal. When the evidence is contradictory, producing doubt, in the mind of the chancellor, he may always direct an issue, for the purpose of informing his conscience, and he may approve the verdict and act upon it, when rendered, or, if dissatisfied with it, he may-set it aside and direct another trial of the issue, or he may decide the cause contrary to the verdict, without the aid of .another jury, if in his judgment the law and the evidence requires it, for the verdict is merely advisory. In cases of doubt and difficulty, an issue is directed, because a public ■examination of the witnesses, where they can be seen and heard and subjected to the test of cross-examination, ordinarily affords better means of arriving at a correct conclusion than a perusal of the evidence on paper, especially where the credibility of witnesses is involved. And in view of the voluminous and contradictory evidence in the present case, the eir[102]*102cuit court rightly exercised its discretion in directing an issue. Stannard v. Graves, 2 Call, 369; Samuel v. Marshall, 3 Leigh,, 567; Wise v. Lamb, 9 Gratt., 294; Powell and wife v. Manson, 22 Id., 177; Mettert’s adm’r v. Hagan, 18 Id., 231; Almond v. Wilson, 75 Va., 613; Crebs v. Jones, 79 Id., 381; Watt v. Starke, 101 U. S., 247.
The next and principal question in the case is, whether there was error in refusing to set aside the verdict, and in decreeing for the plaintiffs. And the solution of this question depends upon the proper conclusions to be drawn from the evidence. As is usual in like cases, the evidence is conflicting, and, in addition to this, the credibility of one or more of the most important of the defendants’ witnesses is assailed, so that the verdict and the decree rendered in accordance therewith, are entitled to peculiar weight. Indeed, as was said in Almond v. Wilson, supra, to reverse the decree would be an unusual exercise of appellate jurisdiction, and in violation of the long-established practice of the court, unless error be palpable. And in Snouffer’s adm’r v. Hansbrough, 79 Va., 166, the rule is stated in terms not less strong.
There is a great mass of testimony in the case, covering several hundred pages of the printed record, and to review or analyze it all, would be both tedious and unnecessary. Ve have carefully examined it, however, and are satisfied there is-no error in the decree. The case in substance is simply this:
On the 1st of April, 1881, Isham M. Ferguson, of Roanoke, departed this life, childless and intestate, leaving two brothers- and a sister, his heirs at law. Afterwards, one of the brothers-assigned his interest in the estate to a third party, who together ■with the heirs whose interests had not been assigned, were the complainants in the court below. On the 15th of September,, next preceding his death, the said Ferguson conveyed to the defendants, Tipton T. Fishburne and wife, the appellants here, his dwelling-house, out-houses, and six acres of land thereto-attached, situate in what was then the town of Big Lick. The [103]*103deed also embraced all tbe furniture in the house, but reserved for the grantor’s use a certain designated room in the dwelling-house and the furniture therein during his life. The consideration for this conveyance, as expressed in the deed, was that the grantees would take care of and provide for the grantor, medical bills excepted, so long as he should live, or remain ■with them. It was also stipulated that the grantees would shelter the grantor’s horse, and have it cared for, he to supply the necessary food, and that the room reserved by the latter should not be used or occupied by any one else, unless by mutual consent of all parties. The grantor’s signature and acknowledgment of the deed were witnessed by "W. K. Andrews and T. F. Barksdale; there were no witnesses to the signatures and acknowledgment of the grantees. The value of the real estate was about $6,000; the value of the personalty does not appear.
At the time the deed was executed, the grantor had reached the age of nearly seventy years, and is described as being “ fatally diseased,” and physically • a wreck. For sometime prior tkeréto, he had been suffering from a combination of heart and liver disease, which in course of time affected his mind. On the 1st of April, 1880, his wife died, to whom he had been long married, and to whom he was much attached. Her death, superadded to his bodily infirmities, had a most depressing and injurious effect upon him. His disease, which chiefly caused his mental troubles, steadily grew worse until his death. This we are told by Dr. "Webb, who for years was his physician, and who is one of the principal witnesses for the defendants. The same -witness also testifies that he first discovered that the decedent’s mind was unbalanced, early in May, 1880, a few weeks after his wife’s death; that about that time, he became the victim of delusions; that he imagined persons were plotting against him, and at times became violent without provocation, so much so, that the witness deemed it prudént [104]*104to advise those around him not to leave a weapon or anything within his reach with which he could hurt himself or others.
Many other witnesses testify to the same effect, and especially to the great change in his condition immediately after the death of his -wife. . Previous to that event, he had been a man of strong will, self-reliant, and active and prudent in the management of his affairs, accumulating an estate .worth, perhaps, twenty thousand dollars. After that time, according to much of the evidence, he was not capable of transacting business at all. He became moody; often passed his friends without apparently recognizing them-, and when he spoke at all, it would often be in monosyllables. "When spoken to on even trivial subjects, he would often say “hush, they will hear you; the mountains are full of telephones,” and make other like incoherent remarks. He would say there were “haunts,” and often said he could see stars when none were visible. He believed that engines had been put under his house by negroes, with which to blow him up; that robbers armed with pistols were concealed in the yard, and that his life was in danger from them. On one occasion, he fastened a red ribbon to the sign at the store of Ferguson and G-ambill, in Big Lick, which he declared was his flag, and that he intended to defend it. And many other contemporaneous acts and sayings on his part, evincive of insanity, are mentioned in the evidence.
In May, 1880, by the advice of his physician, he visited Franklin county, where his sister and many of his friends and relatives lived, it being hoped that a change would benefit him. At that time, says Dr. Webb, he was “ unquestionably insane,” and in this opinion, numerous witnesses emphatically concur. Among his delusions was the idea that his niece, who spent some time in the house with him, had been a subject of scandal, and he often spoke of it. This greatly annoyed the young-lady, who testifies that she spoke to Mr. Fishburne, one of the defendants, on the subject, who told her not to mind it, that [105]*105every one knew the old man was crazy, and no one would think anything about it. About the same time, he (Fishburne) addressed a postal card to Otis M. Tench, a nephew of the decedent, living in an adjoining county, upon which he wrote as follows:
“Hear Otis:
Mr. Ferguson seems to be growing worse, and you or one of your brothers will be compelled to come over and stay with him, as it will never do to let him be alone, and he has taken a notion to go to the springs. He has not stayed here for three nights, and I don’t think he wants to stay here at night. Come as soon as you can.
Yours,
T. T. F.”
It 'appears that a few days after the death of the decedent’s wife, the defendants, at his request, gave up their house in Big Lick, in which they were living, and went to live with him, and to keep house for him, and that they were living with him when the postal card above mentioned was written. Mrs. Fishburne, the female appellant, was a neice of the decedent’s wife, and, when a young lady, had lived with him and her aunt; hut how long, and in what capacity, she lived with them, does not distinctly appear. It is, indeed, alleged in the petition for appeal, that she was their adopted daughter, hut of this there is no satisfactory proof in the record.
Humerous witnesses were examined as to the decedent’s mental condition during his visit to Franklin county, which lasted several weeks. And the great weight of this evidence is, that he was then insane and not competent to understand or transact business of any kind. That he had lucid intervals, there is no doubt, hut all who approached him on matters of business, as several of the witnesses did, testify that they found him non compos mentis. All the non-professional witnesses who knew him most intimately, concur in saying that he was insane, [106]*106and they give the grounds upon which they based their opinions. This evidence was clearly admissible, and entitled to great weight. Conn, &c., Ins. Co. v. Lathrop, 111 U. S., 612, and cases cited. And that'his mind continued unbalanced, with occasional lucid intervals, until his death, the evidence, we think,.shows beyond a doubt. It appears that he again visited Franklin county in August and September of the same year, when his mental condition was even worse than at the time of his visit in May. This is shown, apart from the evidence for the plaintiffs, by the testimony of the defendants’ witness, Clinkinpeel, who testifies that he saw him on the 7th of September, about one week before the deed in question was executed, and that he did not then consider him capable of making a deed, and that he would'not have accepted a deed from him on that day, though he had previously testified that when he saw him in the month of May, he considered his mental condition good—“ good as it ever was.”
The deed was written by the subscribing witness, Barksdale, the notary who took the acknowledgments, and who, as a witness for the defendants, gives the following account of it. He says that on the day of its execution, he was approached by defendant, Tipton T. Fishburne, who told him that Mr. Ferguson wished him (witness) to write an instrument between himself (Ferguson) and Fishburne and wife; that he told him the purpose of the desired instrument, and also to go and see Ferguson; that the necessary data was furnished witness by both parties, and that he then drew a deed embracing, as he supposed, the wishes of all parties. Tet the answer denies that the defendants, or either of them, were consulted, or were in any manner instrumental, in the making of the deed. The same witness also testifies that when he took the deed to Ferguson and read it to him, he objected to it on the ground that he wanted the room reserved for him designated. Another deed was thereupon 'written by the witness in place pf the first, and when shown him and read to him, he again objected, say-[107]*107mg he wanted it stated in the deed that he was to furnish his own horse food, and to pay his own medical hills, and that he was not to take any one into the house who was disagreeable to the defendants. Another deed was accordingly written, which is the deed in question. It seems that the grantor’s signature was witnessed by the subscribing witnesses at his request; but why he desired witnesses to the transaction, so far as his own acts were concerned, and not as to the other parties, is not explained, nor will we stop to speculate on the subject. The deed was then taken to the grantees, both of whom signed and acknowledged it; but it does not appear to have been at that time delivered to them, in the technical sense of that term; and upon this point also we are left without explanation.
The next we hear of the deed is through the witness, J. R.. Fishburne, a brother of the male appellant, and who at the time in question took his meals at the house of the parties. He testifies that a few days after the deed was executed, the decedent, hearing him say he was going to Salem, requested him to take the deed and have it recorded, and that he went to his room, got it, and delivered it to the witness. The same witness also testifies that the decedent’s mental condition was good. Indeed, he says he never saw his mind unbalanced at any time, though he boarded in the same house with him from the 18th of June, 1880, until his death in April, 1881; which goes to show, either that the witness sawr but little of him, or that his views on the subject of insanity are peculiar.
Both of the subscribing witnesses testify that when the deed was executed, the grantor was in his right mind. And other ■witnesses who were examined for the defendants, give it as their opinion that he was at that time competent to • contract. But that his mental faculties were so far restored, as that his mind had again become the safe guide of his actions, we are by no means satisfied from the evidence. And this it ivas incumbent on the defendants to prove, to entitle them to a decree; for although derangement when alleged must be [108]*108proved, yet if a state of general derangement be once established, and a lucid interval is claimed to have afterwards prevailed at a particular period, then the burden of proof is on the party alleging such lucid interval, to show sanity and competence at the period the act was done, and to which the lucid interval refers. And the evidence applying to such interval ought to go to the state and habit of the person, and not to the accidental interview of any individual, or to the degree of self-possession in any particular act. This was decided by Lord Thurlow in the loading case of Attorney- General v. Parnther, 3 Bro. C. C., 441, and such is the established doctrine. 1 Greenl. Ev., sec. 42; 3 Stark. Ev., 1703; Hoge v. Fisher, 1 Pet. C. C., 163; Spencer v. Moore, 4 Call, 423; Wray v. Wray, 33 Ala., 187; Jackson v. King, 4 Cow., 207; Achey v. Stevens, 8 Ind., 411; Crouse v. Holman, 19 Ind., 30.
ETow, so far from this having been done by the defendants in the present case, the terms of the deed itself go far towards proving the contrary. In the first place, the consideration was inadequate. The obligation to take care of an old man, then tottering upon the brink of the grave, during the residue of of his life, or rather for such time as he might choose to remain with the grantees, was certainly not an adequate consideration for property worth at the time more then six thousand dollars. Indeed, it was grossly inadequate, and this fact, taken in connection with all the circumstances surrounding the execution of the deed, leads irresistibly to the conclusion, that not only was there wanting on that occasion, the strength of will and clear perception which characterized the grantor before his bodily and mental infirmities came upon him, but that he had no such appreciation or understanding of the nature and consequences of the transaction, as to render it valid on his part. The inference rather is, that his mind was under the controlling influence of others, whose relations towards him were such as to enable them to exercise dominion over him. Thus, when the first draft of the deed was read to him, he objected to it, [109]*109though he had only a little while before told the scrivener how he wished it prepared. And when the second draft was the same day read to him, he said he desired it inserted in the deed, among other things beneficial to the grantees and not embraced therein, that he was “not to bring anybody into the house who was disagreeable to Fisliburne and wife.”
These circumstances are full of significance, giving rise to the strongest presumptions against the validity of the deed. Here is an old man, enfeebled by many infirmities, only a few weeks before, as the defendants themselves prove, “ unquestionably insane,” not only stripping himself for an insignificant consideration, of the title to his home, but willing to grant away the privilege of inviting into it his nearest and dearest friend, unless agreeable to the defendants, and this by means of a deed prepared from data furnished in part by one of the grantees. Does all this indicate an act of a man competent to contract, or of one, the light of whose intellect was feebly flickering, if not extinguished? To these questions but one answer, consistently with the record, can be given, and that is the answer which the jury gave, and which the judge who presided at the trial very properly approved. To answer otherwise, and to uphold the deed in question, would not ouly open -wide the door to fraud and imposition upon the weak and dependent, but would be violative of the wisely established principles by which courts of chancery in such eases have been guided for centuries.
Hor is this all. There is other evidence in the record well worthy of consideration in this connection. It appears that soon after-the date of the deed, the decedent visited his brother in Kentucky, accompanied by the male appellant, who left him there, where he remained for several weeks. "While in Kentucky, he often spoke of the property in controversy, saying Fishburne claimed to have a deed for it, but he did not know how he got the deed] that he (Ferguson) had no recollection of signing it, and knew nothing about it. This appears from [110]*110the uncontradicted testimony of several witnesses, who further testify that during his stay in Kentucky his mind was evidently ■unbalanced, and that he was not capable of attending to business.
There is much more evidence which strengthens'our conclusion in the case, but it is needless to refer to it. Enough has been already said to vindicate the correctness of the decree complained of.
The case of Allore v. Jewell, 94 U. S., 606, in which the deed there assailed was set aside, is not stronger than the present case. In the opinion of the court in that case, reference was approvingly made to the language of Mr. Justice Story, in Harding v. Wheaton, 2 Mason, 378, who said: “ extreme weakness will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity; and although a contract in the ordinary course of things, reasonably made with such a person, might be admitted to stand, yet if it should appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness or its value, fully and fairly, it cannot be that the law is so much at variance with common sense as to uphold it.” It was accordingly declared to be settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside, since from these circumstances, imposition or undue influence will be inferred.
This principle applies to the present case, and with peculiar force, in view of the fact stated by the scrivener in general terms that the memoranda from which the deed was drawn were furnished by both parties. It is true, one of the issues submitted to the jury was, whether the- deed in question was [111]*111obtained by fraud or undue influence, and that upon this issue the jury ultimately found for the defendants. But this can be reasonably construed as nothing more than a finding that the deed was not obtained by actual fraud.
In the celebrated case of Chesterfield v. Jansen, 2 Ves., 155, Lord Hardwicke classified fraud under five heads, as follows: 1. Actual fraud, arising from circumstances of imposition, which is the plainest case. 2. Fraud which is apparent from the intrinsic nature and subject of the bargain itself, as where the bargain is such as no man in his senses and not under delusion would make on the one hand, and no fair and honest man would accept on the other. 3. Fraud which may be presumed from the circumstances and condition of the parties contracting; and this, he said, goes further than the rule of law which requires it to be proved, not presumed, and is wisely established in a court of chancery to prevent advantage being taken of the weakness or necessity of another, which knowingly to do is against conscience. 4. Fraud which is inferred from the circumstances of the transaction as being an imposition upon third parties, as in the case of marriage-brocage contracts. And 5. Fraud which infects “ catching bargains.’’
The present case comes under the third of these heads; for, although it is true that courts will not undertake to measure the size of people’s understandings or capacities, and therefore mental weakness alone will not invalidate an instrument, (Greer v. Greers, 9 Gratt., 330), yet where, as we have seen, great weakness of mind concurs with gross inadequacy of consideration, or circumstances of suspicion, the transaction will be presumed to have been brought about by undue influence, and will be set aside.
Authority in support of this doctrine is abundant. Indeed, its correctness is not disputed, but it is contended that such a presumption is repelled in the present case by the fact that the deed in question was the consummation of a previously declared purpose on the part of the grantor, and much reliance in the [112]*112argument was seemingly placed upon this position. The record, however, affords little or no support for such a contention. In the first place, the evidence on the point is by no means consistent. Thus, one witness testifies that on a certain occasion, the grantor remarked to him that he intended “ to deed ” the property in controversy and certain other real estate to Mrs. Fishburne, the female appellant; while another testifies that, about the same time, he told him he intended “to leave” (i. e. devise) her the property in controversy; and still another says he told him he intended to give it to her: whereas the deed in question conveys it for a consideration to her and her husband jointly. Besides, it appears from the testimony of all these witnesses, except one—and that one was impeached— that these declarations of the grantor were made after the 1st of April, 1880. And, on the other hand, there is evidence for the complainants, showing that prior to that time, he declared that he had done a great deal for his “wife’s kin,” and that he intended his property for his “ home people —-by which was-meant, we presume, his blood relations.
But apart from this, there is another consideration already incidentally adverted to, which is equally decisive; and that is-one growing out of the relations subsisting between the parties at the time the deed was executed. The evidence shows that when the appellants went to live with the decedent, soon after the death of his wife, they went, not alone for the purpose of managing his household affairs, but as friends and companions,, to cheer him in his loneliness, and to comfort and protect him. They, therefore, assumed towards him the most intimate and confidential relations—relations in which nothing is more natural, than that they should have gained his confidence, and acquired influence over him.
How, the rule is that where one person stands in a relation of special confidence towards another, so as to acquire an habitual influence over him, he cannot accept from such person a personal benefit without exposing himself to the risk, in a [113]*113degree proportioned to the nature of their connection, of having it set aside as unduly obtained. Adams Eq., 183.
And in 1 Story’s Equity, sec. 329, a, the rule is even more strongly stated, as follows: “where the contract is between those who sustain, or have lately sustained, any intimate and confidential relation, the law presumes the existence of that superiority and infiuenee on the one part, and that confidence and dependence on the other, which is the natural result of the relation, and will accordingly decree the cancellation of the contract, unless it appear affirmatively to have been equal and just.”
The same doctrine is laid down with great force and clearness by Lord Crannorth, in Smith v. Kay, 7 H. L. Cas., 750, in these words: “ My lords, there is, I take it, no branch of the jurisdiction of the court of chancery which it is more ready to exercise than that which protects infants and persons in a situation of dependence, as it were, upon others, from being imposed upon by those upon whom they are so dependent. The familiar cases of the infiuenee of a parent over his child, of a guardian over his ward, of an attorney over his client, are but instances. The principle is not confined- to those cases, as was well stated by Lord Eldon, in the case of Gibson v. Jeyes, 6 Ves., 266, in which he says it is ‘the great rule applying to trustees, attorneys, or any one else.’ ” Indeed, many of the cases hold that a transaction between persons occupying towards each other the relations above described, will not be permitted to stand, where the party subject to influence acted without independent advice. The recent case of Kempson v. Ashbee, 10 Ch. Cas., 15, decided in the English court of appeal in chancery, and referred to in the opinion of the court in Allore v. Jewell, supra, is a case of that description. See also, 2 Min. Insts., 597; June v. Willis, 30 Fed. Rep., 11, note; Huguenin v. Basely, 2 Lead. Cas. Eq., (marg. p.) 556, et seq., and the notes, where the authorities are collected.
The only remaining question relates to the instructions given [114]*114to the jury, oti the motion of the complainants, upon the trial of the issues. Of these there were seven. The real objection, however, is to the third, whicli is in these words: “The court instructs the jury that unless they believe from the evidence that the grantor in the deed in controversy, when he executed the same, had a legal capacity and sufficient understanding to comprehend clearly the nature of the business, and that he consented of his own volition to the execution of the said deed, and that no fraud or undue influence was used to procure said contract, they must find for the plaintiffs.”
The defendants complain of this instruction, because, they say, it was calculated to mislead the jury into believing that the burden of proof was on them, and not on the assailants of the deed. ¥e do not think the instruction is open to this objection, though it is quite true it might have been better expressed. But he that as it may, the result in any view is the same. "W"e have seen that by their own evidence, it appears that shortly before the deed was executed, the grantor was insane; and we have also seen that the burden of proof was consequently shifted upon them to show that when the deed was executed, he had sufficient intelligence to understand it fully, and that he acted freely, if indeed, in view of the relations between the parties, and all the attendant circumstances, the transaction could he upheld at all. And hence no greater burden has been put upon them, than under the established rule of law, applied to the particular facts of the case, it was incumbent on them to assume. So that, even if the instruction 'be not strictly and technically correct, the defendants have not been prejudiced by it. Moreover, in passing on a complaint of errors in the trial, of an issue out of chancery, the the court proceeds upon very different principles from those governing in an application for a new trial in an action at common law. In the former case, the rule as laid down by Judge Staples in Powell and wife v. Manson, 22 Gratt., 177, and recognized in Snouffer v. Hansbrough, 79 Va., 166, is that although [115]*115there may have been a misdirection, or evidence may have been improperly admitted or excluded, yet a newotrial will not he granted, if upon a consideration of the-whole case the verdict appears to be right. And the reason is, that an issue out of chancery is a mere incident of the proceedings, the verdict, when rendered, being only advisory. Lamberts v. Cooper’s ex’or, 29 Gratt., 61; Hartman v. Strickler, 82 Va., 225; Johnson v. Harman, 94 U. S., 371; Watt v. Starke, 101, Id., 247; and cases cited supra. It would, therefore, he manifestly unjust to reverse a decree for some merely technical error committed upon the trial of an issue, when the court can see from the record that the case has been rightly decided.
This rule applied to the present case, requires an affirmance of the decree complained of.
Fauntleroy, J., and Biohardson, J., dissented.
Decree aeeirmed.