Bowie, C. J.,
delivered the opinion of this Court:
This is an application to a Court of Equity by a grantor, against the heirs and representatives of her grantee, to va-. cate a deed upon tho ground of actual and constructive fraud. The hill alleges that, the appellee being a woman of extreme age, unable to read or write, and depending on her son, George Stiffier, for advice, assistance and direction in all matters of business, in which he was and had been for many years her exclusive agent, in the month of March or April 1849, was induced by fraudulent devices and pretences practiced by him, to convey to her son, in fee, a certain house and lot in Washington County, for the nominal consideration of six hundred and fifty dollars, whereas, in fact, no consideration was paid; which conveyance was not known to the complainant until after the death of George Stiffier, when certain proceedings were instituted to make partition of his real estate among his heirs at law, through which the complainant was first informed of the fraud and imposition practised upon her. All the material allegations of the hill (except the extreme age of the complainant) are put in issue by. the answers. Testimony was taken by each party under the commissions issued in the cause. The defendants have filed exceptions to (he interrogatories of the complain[350]*350ant, on the ground that they are leading. To-the testimony of the witnesses Brashears, because they are interested in the cause. To so much of the testimony of Kuhn, Bra-shears,, Hammond and Hill, as professes to prove the condition of the complainant’s mind and the influence exerted, on her by George Stifflér, because-they give opinions without stating the facts on which those opinions are founded;- and the other facts to which they testify are irrelevant and inadmissible. But one of the interrogatories in the series of the complainant’s interrogatories-in-chief,- seems to us objectionable as leading, viz: the fourth, but the view, which we. take of the facts proved under other interrogatories, renders the objection unimportant on the general bearing of the case.
The testimony of Cook is excepted to as irrelevant, and inadmissible for other reasons. Exceptions are taken to the declarations of the complainant, as to the property belonging to her, and to the admissibility of Exhibit S.G. for the.purpose for which it was offered, “there being no exr hibit with the bill of complaint of a certified-copy of the deed.” It is unnecessary to notice all these specifically, those operating upon the evidence deemed material will.be commented on. The Messrs. Brashears being shown to be grand-children of the complainant, it is contended, that their testimony tending to set aside the deed for incapacity in the grantor, establishes facts which make them interested in the result of the cause. This objection goes to their credibility, rather than their competency. Their interest is contingent, not certain. “To render the person called incompetent as a witness, he must have a legal interest, a direct and certain interest in the event of the suit, inclining him against the party objecting.” 1 Phil. on Ev., sec. 6. Reynolds, Adm’r of Paul, vs. Manning, et al., 15 Md. Rep., 510.
Messrs. Kuhn and Cook were both subscribing witnesses to the deed sought to be vacated, and the justices of the [351]*351peace before whom it purports to have been executed and acknowledged. It is certainly against the policy of the law, that justices of the peace should be permitted to contradict, as witnesses, what they are officially certified to as magistrates; to that extent they are incompetent as witnesses. Vide 18 Md. Rep., 318. Beyond this, there is no rule of law which precludes them from testifying to facts which do not contradict their official certificates, although those facts may incidently operate on the legal effect of the instrument acknowledged before them. For instance, they may testify to the age and health of the grantor, to the payment or non-payment of the consideration money, the reading or omission to read the instrument, or other collateral facts not conflicting with what they had certified.
The rules of evidence which incapacitated attesting witnesses from impeaching instruments to which their signatures had given credit, have been relaxed and abandoned. 1 Phil. Ev. (Cow. Phil. & Hill,) secs. 128, 129. Townshend vs. Townshend, 9 Gill, 506. Such evidence however is to be received with much jealousy. . Neither Kuhn or Cook testifies to any fact contradicting their certificate. Most of the testimony of the former relates to facts independent of, and having no connection in time or place with the execution of the deed. Their answers to the fifth general interrogatory refer to its execution, and detail the circumstances attending. From these it appears, the grantor was about eighty-nine years of age, that her son George brought her into the room and told her he wanted her to acknowledge the deed which Cook held in his band, and make her mark; that she came forward very feebly and made her mark and acknowledged the deed, and at the same lime Cook pulled out three or four notes (amounting in the aggregate to $1000.) “ Each of these had an assignment written on its back/^ to which the appellee' made her mark. The deed was not read or explained to the appellee, nor was any purchase [352]*352money paid. The deed was written at the request of Geo'rge. Another witness (Hill) says, he was' present at the execution of the instrument of writing from Sarah Stiffler to George. That the magistrate who drew the instrument would ask the old lady questions, and George would answer them.- She did not say anything. No part of the instrument, except the acknowledgment, was read to her. No money was paid, and witness thought at the time that it was more George’s instrument than the old lady’s.
Paul Hammond testifies, that George Stiffler told him he advised his mother to make her property over in order to relieve herself from difficulty. The idea was, that Jacob Grove had a judgment against her son, John Stiffler, which he expected to make out of John’s interest in her property, and George told him, inconsequence of these representations¿ he held the property.
It is unnecessary to cite further the testimony on the part of the complainant. On behalf of the defendants it was proved, that the appellee frequently between 1849 and 1855, said she had made all her property over to her son George; that he was kind to her, and all she possessed was his; that she did not intend any of her other children should have any of her property; that George took care of her, attended to her business for her, and maintained her, and those were the reasons she gave her property to him.These witnesses all think the grantor was of sound and disposing mind, and capable of. making a valid deed or contract. Wherever a fiduciary relation .exists, legal or actual, whereby trust and confidence are reposed on the one side, and influence and control are exercised on the other, Courts of Equity, independent of the ingredients of positive fraud, through public policy as a protection against overweening confidence, will interpose to prevent a man from stripping himself of his property. Story’s Equity, secs. 303 to 322.
The relation requires the parties to abstain from all selfish projects. “ The general principle is, if a confidence is [353]
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Bowie, C. J.,
delivered the opinion of this Court:
This is an application to a Court of Equity by a grantor, against the heirs and representatives of her grantee, to va-. cate a deed upon tho ground of actual and constructive fraud. The hill alleges that, the appellee being a woman of extreme age, unable to read or write, and depending on her son, George Stiffier, for advice, assistance and direction in all matters of business, in which he was and had been for many years her exclusive agent, in the month of March or April 1849, was induced by fraudulent devices and pretences practiced by him, to convey to her son, in fee, a certain house and lot in Washington County, for the nominal consideration of six hundred and fifty dollars, whereas, in fact, no consideration was paid; which conveyance was not known to the complainant until after the death of George Stiffier, when certain proceedings were instituted to make partition of his real estate among his heirs at law, through which the complainant was first informed of the fraud and imposition practised upon her. All the material allegations of the hill (except the extreme age of the complainant) are put in issue by. the answers. Testimony was taken by each party under the commissions issued in the cause. The defendants have filed exceptions to (he interrogatories of the complain[350]*350ant, on the ground that they are leading. To-the testimony of the witnesses Brashears, because they are interested in the cause. To so much of the testimony of Kuhn, Bra-shears,, Hammond and Hill, as professes to prove the condition of the complainant’s mind and the influence exerted, on her by George Stifflér, because-they give opinions without stating the facts on which those opinions are founded;- and the other facts to which they testify are irrelevant and inadmissible. But one of the interrogatories in the series of the complainant’s interrogatories-in-chief,- seems to us objectionable as leading, viz: the fourth, but the view, which we. take of the facts proved under other interrogatories, renders the objection unimportant on the general bearing of the case.
The testimony of Cook is excepted to as irrelevant, and inadmissible for other reasons. Exceptions are taken to the declarations of the complainant, as to the property belonging to her, and to the admissibility of Exhibit S.G. for the.purpose for which it was offered, “there being no exr hibit with the bill of complaint of a certified-copy of the deed.” It is unnecessary to notice all these specifically, those operating upon the evidence deemed material will.be commented on. The Messrs. Brashears being shown to be grand-children of the complainant, it is contended, that their testimony tending to set aside the deed for incapacity in the grantor, establishes facts which make them interested in the result of the cause. This objection goes to their credibility, rather than their competency. Their interest is contingent, not certain. “To render the person called incompetent as a witness, he must have a legal interest, a direct and certain interest in the event of the suit, inclining him against the party objecting.” 1 Phil. on Ev., sec. 6. Reynolds, Adm’r of Paul, vs. Manning, et al., 15 Md. Rep., 510.
Messrs. Kuhn and Cook were both subscribing witnesses to the deed sought to be vacated, and the justices of the [351]*351peace before whom it purports to have been executed and acknowledged. It is certainly against the policy of the law, that justices of the peace should be permitted to contradict, as witnesses, what they are officially certified to as magistrates; to that extent they are incompetent as witnesses. Vide 18 Md. Rep., 318. Beyond this, there is no rule of law which precludes them from testifying to facts which do not contradict their official certificates, although those facts may incidently operate on the legal effect of the instrument acknowledged before them. For instance, they may testify to the age and health of the grantor, to the payment or non-payment of the consideration money, the reading or omission to read the instrument, or other collateral facts not conflicting with what they had certified.
The rules of evidence which incapacitated attesting witnesses from impeaching instruments to which their signatures had given credit, have been relaxed and abandoned. 1 Phil. Ev. (Cow. Phil. & Hill,) secs. 128, 129. Townshend vs. Townshend, 9 Gill, 506. Such evidence however is to be received with much jealousy. . Neither Kuhn or Cook testifies to any fact contradicting their certificate. Most of the testimony of the former relates to facts independent of, and having no connection in time or place with the execution of the deed. Their answers to the fifth general interrogatory refer to its execution, and detail the circumstances attending. From these it appears, the grantor was about eighty-nine years of age, that her son George brought her into the room and told her he wanted her to acknowledge the deed which Cook held in his band, and make her mark; that she came forward very feebly and made her mark and acknowledged the deed, and at the same lime Cook pulled out three or four notes (amounting in the aggregate to $1000.) “ Each of these had an assignment written on its back/^ to which the appellee' made her mark. The deed was not read or explained to the appellee, nor was any purchase [352]*352money paid. The deed was written at the request of Geo'rge. Another witness (Hill) says, he was' present at the execution of the instrument of writing from Sarah Stiffler to George. That the magistrate who drew the instrument would ask the old lady questions, and George would answer them.- She did not say anything. No part of the instrument, except the acknowledgment, was read to her. No money was paid, and witness thought at the time that it was more George’s instrument than the old lady’s.
Paul Hammond testifies, that George Stiffler told him he advised his mother to make her property over in order to relieve herself from difficulty. The idea was, that Jacob Grove had a judgment against her son, John Stiffler, which he expected to make out of John’s interest in her property, and George told him, inconsequence of these representations¿ he held the property.
It is unnecessary to cite further the testimony on the part of the complainant. On behalf of the defendants it was proved, that the appellee frequently between 1849 and 1855, said she had made all her property over to her son George; that he was kind to her, and all she possessed was his; that she did not intend any of her other children should have any of her property; that George took care of her, attended to her business for her, and maintained her, and those were the reasons she gave her property to him.These witnesses all think the grantor was of sound and disposing mind, and capable of. making a valid deed or contract. Wherever a fiduciary relation .exists, legal or actual, whereby trust and confidence are reposed on the one side, and influence and control are exercised on the other, Courts of Equity, independent of the ingredients of positive fraud, through public policy as a protection against overweening confidence, will interpose to prevent a man from stripping himself of his property. Story’s Equity, secs. 303 to 322.
The relation requires the parties to abstain from all selfish projects. “ The general principle is, if a confidence is [353]*353reposed, and that confidence is abused, Courts of Equity will grant relief.” One of the most familiar examples is that of parent and child: “ All contracts and conveyances whereby benefits arc secured by children to their parents, are objects of jealousy, and if they are not entered into with scrupulous-good faith, and are not reasonable trader the circumstances, they will be sot aside, unless third persons have acquired an interest under them, especially where the original purposes for which they have been obtained are perverted or used as a cover.” Sec. 310, and authorities cited in note 2. “ The same principles are applied to persons standing in a situation as quasi guardians, or confidential advisers.” Revett vs. Harvey, 1 Sim. & Stu., 502. These principles are fully adopted and endorsed by this Court in the case of Burke, et al., vs. Berry, 2 Gill, 99.
The natural relation of the parties was reversed in this instance by the influence of time. The parent had become a child, and the child was 'guardian to the parent. The same dependence, overweening confidence, and implicit acquiescence, which rendered one an automaton in the hands of the other, existed, “ et ubi eadem ratio, ibi idem jus.” The wish of the agent had become the will of the principal. Whatever the former suggested, the latter executed. There was no consent of two minds, but a merger of the principal’s mind into the agent’s.
In such cases it is not necessary to prove the actual exercise of overweening influence, misrepresentation, importunity or fraud aliunde the act complained of. Justice Story says: “On the one hand it is not necessary to establish that there has been fraud or imposition on the client, and on the other, it is not necessarily void ipso Jacto. But the burthen of establishing its perfect fairness, adequacy and equity, is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person placing a confidence in him, is bound, to show that a reasonable uso has been made of that confidence,— a rule [354]*354applying equally to all persons standing in confidential relations with each other.” Story’s Equity, sec. 312, and authorities in note 1. If no such proof is established, Courts of Equity treat the case as one of constructive fraud. Ibid. In this respect there is said to be a distinction between the case of attorney and client, and that of trustee and cestui que trust; that in the former, if the attorney, retaining his connexion, contracts with his client, he is subject to the onus of'proving that no advantage has been taken of the situation of the latter. But in the case of a trustee, it is not sufficient to shew that no advantage has been taken; but the cestui que trust may set aside the transaction at his option.” Ibid.
Among the circumstances indicative of actual fraud, which constitutes a ground for vacating a deed, Chancellor Bland, in Colegate D. Owings’s case, enumerates: “Such as that a deed never having been left for perusal, or its not being read, or its being prepared by the grantee and obtruded on the grantor, or where the gift was exorbitant, or where the party had not then -the means of paying what he stipulated to pay, or where in consequence of the relation in which the parties stood towards each other, or in any way the grantee had obtained a commanding influence, or the entire confidence of the grantor, which was used. * * * * Where the weak man had conveyed all his property, leaving himself to be fed -and clothed at the pleasure of the grantee.” In all these, and many other similar cases, the weakness of mind of the party, who was not altogether non compos mentis, has been taken into account with the other circumstances, to make up that amount of imposition and fraud which was considered a sufficient ground for relief. 1 Bland, 392. It will be seen, upon comparison of the testimony with the text just cited, that many of the indicia of fraud mentioned, occur in this case. Whatever view we take of the evidence, whether the relation between the grantor and grantee was that of principal and agent, trustee and cestui que trust, or quasi guardian [355]*355and ward, the confidence reposed, and Hie influence acquired, were such as to compel a Court of Equity to declare a deed executed in the manner and under the circumstances proved, improvident and voidable at the instance and option of tbe grantor. As the influence and infirmities under which the grantor labored were continuous and increasing up to the year 1855, the period of the death of the grantee, hut two years elapsed between that and the filing of the bill, an interval too brief to imply such laches as would prejudice her rights. There is no evidence of any confirmation sufficient to ratify the deed in question.
(Decided May 11th, 1864.)
The decree appealed from will 'be affirmed, with costs to the appellee.
Decree affirmed.