Mr. Justice Shope
delivered the opinion of the Court:
There are five distinct causes alleged by appellee why the deeds from him to appellant should be set aside: First, that undue influence was exercised over appellee by appellant, to induce him to execute them; second, that appellee was, at the time of executing the same, of such unsound mind and memory as not to be competent to make a deed; third, that there was no consideration for said deeds, and that their execution was procured by deceitful arts, fraudulent devices, falsehood and misrepresentation, and false and fraudulent pretences practiced on the appellee by the appellant; fourth, that the deeds were never delivered; and fifth, that appellant has failed and refused to perform the contract, which was the sole consideration for said deeds on his part. The circuit court based its decree upon the charge of undue influence alone, and we will therefore examine that point first, and if it appears the finding of the circuit court in that respect is sustained by the law and the evidence, of course the decree will have to be affirmed; but if the finding is not sustained, then the other reasons urged for setting aside the deeds will require examination.
It is important at the outset to ascertain what constitutes such undue influence as will vitiate a deed procured by its exercise over the grantor. It is not sufficient to avoid a will or a deed that its execution wras procured by honest argument or persuasion, untainted with fraud. In Dickie v. Carter, 42 Ill. 379, this court said: “If all is fair, and the result of honest argument and persuasion, or of such influence as one may properly obtain over another, the will (deed) must stand. ” In Yoe v. McCord, 74 Ill. 44, we said: “To avoid a will the influence which is exercised must be undue, and this, in a legal sense, is something wrongful,—a species of fraud. ” The same doctrine is announced in many other cases. It follows that the proper and legitimate exercise of an influence fairly and' honestly acquired, is not the exercise of an undue influence, and that a deed which, but for such influence, would not have been made, will still be sustained if made freely and as a result of the maker’s own conviction, and in the exercise of his own deliberate judgment. This being the law, does the evidence in this case show that the deeds in controversy were procured by the exercise of undue influence by appellant over appellee?
We find plenty of evidence in the record showing very kind feelings between appellant and appellee prior to the execution of the deeds and for a considerable time after, from which it might be inferred that each would have some influence over the other; but we are unable to see anything in the record which tends to show the exercise of any undue influence by appellant over appellee, unless it can be said that the deeds themselves, the evidence as to the value of the land, and the contract between the parties, raise a presumption that such an undue influence was exercised. The only thing the appellee says in his testimony which can have any relation to the question of influence is: “Defendant proposed to cornee and live with me in the spring of 1881. His manner towards me was very agreeable. He was kind and considerate, and treated me as a son should his father. In April, 1881, we had a talk about his coming to live with me. I told him I would deed him one-half of my farm, and the balance at my decease. I think we had another talk about it about the time we came to get Thompson to draw the writings. I did deed him two pieces of land, but I do not know whéther it was put in one deed or not. ” The appellant says that appellee first mentioned the subject of appellant going to live with him and take care of him, and appellee says appellant first mentioned it; but it is a matter of. no consequence, in this connection, which is correct in this respect, because appellee, in his testimony, does not mention a single act done or word said by appellant, by way of persuasion, importunity or otherwise, to in any manner influence him in the premises. He says they had a talk upon the subject in April, 1881, and another one before the papers were signed, but he does not pretend to give any of these conversations. Surely, if anything was done or said on either occasion which amounted to an attempt to unduly influence appellee, he would have mentioned it in his testimony, but he did not; and in view of the fact that some time elapsed after the negotiations began, before it was consummated, and that, when consummated, it was only carrying out, in substance at least, a design previously formed by appellee with reference to another nephew, and the further fact that appellee stated to the attorney who drew the papers what the contents were, we are forced to conclude the transaction was the result of the appellee’s own will and judgment, so far as the question of undue influence was concerned, and therefore the finding of the circuit court on that subject is not sustained by the evidence.
The second cause urged for setting aside the deed is, that appellee, at the time of its execution, was not of sound mind, and did not understand its purport and effect. On this subject there were nine witnesses—neighbors and friends of the appellee—examined on his behalf, six of whom say that for a few years prior to 1881 they had noticed that appellee was failing physically and mentally, and that he was not as competent to do business as he formerly had been. Five of them had done business with him, four had not. One thought that his mental faculties were unimpaired, and two of them thought his mind all right until they heard of his trade with appellant, and from that fact alone concluded his mind was impaired. On the other hand, ten witnesses were examined on behalf of appellant, all of whom testified that his mental faculties were not only good up to the time of the transaction now under consideration, but up to the time of the giving of their testimony. These witnesses, with one or two exceptions, are all neighbors and intimate acquaintances, and most of them had had business with him, and one of them (Thomas Hall) had a very important transaction with him in March, 1881, being the purchaser of a farm for the sum of $6000. Mr. Hall says: “We paid him $5000 down, and the balance in September. When I paid him the balance, in the fall, he seemed all right for health and strength, so far as I know. He inquired all about the interest, to see whether we were correct. * * * We paid it at complainant’s house, to him. * * * No one assisted him in the transaction. My judgment is, he knows how to do business as well as any one we have done business with,—that was so in 1881, when we transacted business with him. ” It is an undisputed fact that appellee has transacted his own business ever since the execution of the deeds in controversy, amongst other things selling a large amount of personal property to appellant, taking notes, collecting money, etc., and his mental capacity as to these transactions has not been doubted, either by himself or his friends, so far as we can ascertain from the record. We therefore conclude that he had sufficient mental capacity to make the deeds in dispute, and that they should not be set aside for want of such capacity.
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Mr. Justice Shope
delivered the opinion of the Court:
There are five distinct causes alleged by appellee why the deeds from him to appellant should be set aside: First, that undue influence was exercised over appellee by appellant, to induce him to execute them; second, that appellee was, at the time of executing the same, of such unsound mind and memory as not to be competent to make a deed; third, that there was no consideration for said deeds, and that their execution was procured by deceitful arts, fraudulent devices, falsehood and misrepresentation, and false and fraudulent pretences practiced on the appellee by the appellant; fourth, that the deeds were never delivered; and fifth, that appellant has failed and refused to perform the contract, which was the sole consideration for said deeds on his part. The circuit court based its decree upon the charge of undue influence alone, and we will therefore examine that point first, and if it appears the finding of the circuit court in that respect is sustained by the law and the evidence, of course the decree will have to be affirmed; but if the finding is not sustained, then the other reasons urged for setting aside the deeds will require examination.
It is important at the outset to ascertain what constitutes such undue influence as will vitiate a deed procured by its exercise over the grantor. It is not sufficient to avoid a will or a deed that its execution wras procured by honest argument or persuasion, untainted with fraud. In Dickie v. Carter, 42 Ill. 379, this court said: “If all is fair, and the result of honest argument and persuasion, or of such influence as one may properly obtain over another, the will (deed) must stand. ” In Yoe v. McCord, 74 Ill. 44, we said: “To avoid a will the influence which is exercised must be undue, and this, in a legal sense, is something wrongful,—a species of fraud. ” The same doctrine is announced in many other cases. It follows that the proper and legitimate exercise of an influence fairly and' honestly acquired, is not the exercise of an undue influence, and that a deed which, but for such influence, would not have been made, will still be sustained if made freely and as a result of the maker’s own conviction, and in the exercise of his own deliberate judgment. This being the law, does the evidence in this case show that the deeds in controversy were procured by the exercise of undue influence by appellant over appellee?
We find plenty of evidence in the record showing very kind feelings between appellant and appellee prior to the execution of the deeds and for a considerable time after, from which it might be inferred that each would have some influence over the other; but we are unable to see anything in the record which tends to show the exercise of any undue influence by appellant over appellee, unless it can be said that the deeds themselves, the evidence as to the value of the land, and the contract between the parties, raise a presumption that such an undue influence was exercised. The only thing the appellee says in his testimony which can have any relation to the question of influence is: “Defendant proposed to cornee and live with me in the spring of 1881. His manner towards me was very agreeable. He was kind and considerate, and treated me as a son should his father. In April, 1881, we had a talk about his coming to live with me. I told him I would deed him one-half of my farm, and the balance at my decease. I think we had another talk about it about the time we came to get Thompson to draw the writings. I did deed him two pieces of land, but I do not know whéther it was put in one deed or not. ” The appellant says that appellee first mentioned the subject of appellant going to live with him and take care of him, and appellee says appellant first mentioned it; but it is a matter of. no consequence, in this connection, which is correct in this respect, because appellee, in his testimony, does not mention a single act done or word said by appellant, by way of persuasion, importunity or otherwise, to in any manner influence him in the premises. He says they had a talk upon the subject in April, 1881, and another one before the papers were signed, but he does not pretend to give any of these conversations. Surely, if anything was done or said on either occasion which amounted to an attempt to unduly influence appellee, he would have mentioned it in his testimony, but he did not; and in view of the fact that some time elapsed after the negotiations began, before it was consummated, and that, when consummated, it was only carrying out, in substance at least, a design previously formed by appellee with reference to another nephew, and the further fact that appellee stated to the attorney who drew the papers what the contents were, we are forced to conclude the transaction was the result of the appellee’s own will and judgment, so far as the question of undue influence was concerned, and therefore the finding of the circuit court on that subject is not sustained by the evidence.
The second cause urged for setting aside the deed is, that appellee, at the time of its execution, was not of sound mind, and did not understand its purport and effect. On this subject there were nine witnesses—neighbors and friends of the appellee—examined on his behalf, six of whom say that for a few years prior to 1881 they had noticed that appellee was failing physically and mentally, and that he was not as competent to do business as he formerly had been. Five of them had done business with him, four had not. One thought that his mental faculties were unimpaired, and two of them thought his mind all right until they heard of his trade with appellant, and from that fact alone concluded his mind was impaired. On the other hand, ten witnesses were examined on behalf of appellant, all of whom testified that his mental faculties were not only good up to the time of the transaction now under consideration, but up to the time of the giving of their testimony. These witnesses, with one or two exceptions, are all neighbors and intimate acquaintances, and most of them had had business with him, and one of them (Thomas Hall) had a very important transaction with him in March, 1881, being the purchaser of a farm for the sum of $6000. Mr. Hall says: “We paid him $5000 down, and the balance in September. When I paid him the balance, in the fall, he seemed all right for health and strength, so far as I know. He inquired all about the interest, to see whether we were correct. * * * We paid it at complainant’s house, to him. * * * No one assisted him in the transaction. My judgment is, he knows how to do business as well as any one we have done business with,—that was so in 1881, when we transacted business with him. ” It is an undisputed fact that appellee has transacted his own business ever since the execution of the deeds in controversy, amongst other things selling a large amount of personal property to appellant, taking notes, collecting money, etc., and his mental capacity as to these transactions has not been doubted, either by himself or his friends, so far as we can ascertain from the record. We therefore conclude that he had sufficient mental capacity to make the deeds in dispute, and that they should not be set aside for want of such capacity.
As to the third cause, viz, that the deeds were without consideration, and were procured by fraud, deceit, falsehood, etc., it is only necessary to remark that both the pleadings and the evidence show a consideration for the deeds,—inadequate, it may be, but a consideration nevertheless, and such as is sufficient to sustain the deed unless there was fraud, misrepresentation or undue influence practiced^ upon or exercised over the appellee to procure their execution, or that there was want of mental capacity on his part to contract. The agreement to take care of appellee for the remainder of his life, if fairly and understandingly made and accepted by both parties, is a consideration sufficient to support the deed, to say nothing of the alleged agreement of appellant to pay $12 per acre for the pasture land, which will be discussed later.
What we have already said as to the claim that undue influence was exercised by appellant over appellee, applies with equal force to the charge of false pretences, falsehood, misrepresentation, deceitful practices, etc., because whilst all of these things are charged in general and sweeping terms in the bill, appellee does not refer to any word or act, in his testimony, showing or tending to show the truth of such charges, nor is there any other evidence in the record to sustain them.
The fourth cause assigned is, that the deeds were never delivered. If this were true, it was not necessary to ask the aid of a court of equity. The delivery of the deeds was necessary before any title passed, and if never delivered no title passed, and' appellee had an adequate and complete remedy at law. But we think that there was a delivery of the deeds. When appellee and appellant went to appellee’s attorney, appellee told the attorney that he had made arrangements with appellant to take his farm and take care of him. Both parties told the attorney what they wanted, and he put it in writing, in the shape of the two deeds, and an agreement for support and sustenance. The papers were all read over to both parties, and seemed to be satisfactory,—at least no objection was made. The deeds were then taken by the attorney, for the purpose of securing the signature and acknowledgment of the conservator of appellee’s wife, which was done, and then the deeds were, by said attorney, delivered to appellant, and by him placed on record. We think the acts of appellee in this matter fully justified the attorney in delivering the deeds to appellant, and the subsequent conduct of appellee in permitting appellant to expend such large sums of money in lasting and valuable improvements, raises a strong presumption that he considered the attorney authorized to deliver the deeds when he left them in his hands. Certainly this was the view he took of it when he filed his original bill herein, for he said there that he had made, executed and delivered sfiid deeds.
The fifth and last cause urged for setting aside said deeds is, that appellant had failed to comply with his part of the contract, and had not furnished appellee proper support, etc., and had locked him out of the house, and refused to permit him to reside with the family as a member thereof, and, in short, that he had'refused to perform any of the things required by the terms of the contract to be done and performed by him. This is a very serious charge, and if sustained by the proof, the deed should be at once set aside, and appellee restored to the full and absolute possession or ownership and control of the property as in his former estate. The contract in full is as follows:
“Whereas, Church Sturtevant has conveyed to said George R, by warranty deed of this date, the N. E. 18, 14 N. 7 E., and by said deed reserves to himself a life estate in and to the undivided half thereof, to be held by him in fee during his natural life: Now, therefore, it is mutually covenanted and agreed between said parties, that George F. Sturtevant shall care for, board, clothe and support, and in sickness nurse, the said Church Sturtevant during his natural life; that the said Church Sturtevant may have the exclusive use and occupancy of the north-east room of the dwelling house on said premises; stable room and hay and grain for two horses, or pasture for the same, as long as and whenever he may choose; the use of the carriage house for a carriage, and all such other privileges in and about and upon the premises as he may desire, and as may be consistent with and not an encroachment upon the rights' and privileges of other members of the family; it being the desire and intention of the said parties that the said George F. Sturtevant and his family shall occupy and reside in the said dwelling house and premises, cultivate and carry on the said farm, and that the said Church Sturtevant shall reside with and constitute a member of the said family, and shall have and enjoy all of the rights and privileges of and as one member of the said family.”
We have carefully considered the testimony on the part of the appellee, as shown by the record, on the subject of the refusal or neglect of the appellant to comply with the contract, and assuming it to be absolutely true, all that can be claimed as shown as a violation of the contract is, first, that the appellant, in the month of June, removed the stove from appellee’s room on a promise to return it if the weather turned cold, and that when the weather did get cold he delayed returning it for two days, and returned it as soon as his attention was called to it; secondly, that appellant locked the door leading from appellee’s room into the hall, so that appellee, in order to reach the dining room, had to step out on a covered porch and walk three feet to the dining room door. Appellee claims the reason assigned for this was, that he passed over the carpets with manure and filth on his feet, although two of his witnesses testify that appellant’s wife was sick at that time, and one of them says that appellant gave as a reason for locking the door, that persons passing through the hall injured her health, and made her nervous, and that he requested appellee not to pass through the hall for that reason. The contract provides: “Said Church Sturtevant may have the exclusive use and occupancy of the north-east room, * * * and all other such privileges in and about and upon the premises as he may desire, and as may be consistent with and not an encroachment upon the rights and privileges of the members of the family, * * * it being the intention * * * that said Church Sturtevant * * * shall have and enjoy all the rights and privileges of a member of the said family. ” If appellee persisted in going through the hall in such a way as to annoy or injure the health of sick members of the family, it was not consistent with and was an encroachment upon the rights and privileges of other members of the family, and appellant had a right to prevent it by locking the door leading from appellee’s room into the hall, provided, in doing so, he did not interfere with appellee’s exclusive use of that room, or do any act injurious to the comfort or health of appellee.
Having said this much, it is not necessary to refer to the evidence on this subject offered by appellant, any further than to say, that when considered as a whole, the evidence decidedly preponderates in favor of not only a strict but a liberal compliance with all the terms of the contract under consideration, and therefore we think the decree of the circuit court ought to be reversed.
As to the consideration to be paid for the tract of land known as the pasture land, mentioned in the bill and evidence, we are inclined to the opinion the preponderance of evidence supports the claim of appellee that appellant was to pay him $12 an acre for it. The appellant admits that it was spoken of, but says he refused to agree to it, but the house-keeper, Mrs. Wheeler, testified that appellant told her he was to pay $12 per acre for the pasture, and appellee and Thompson both say that was agreed to when the deeds were drawn. There is a misunderstanding on the part of either the appellant or the other three witnesses, and there is nothing by which to be guided except the number of ■ witnesses, where all are equally credible and intelligent, and have equal means of knowing the facts about which they testify. The $12 per acre was the purchase price of this tract of land, and appellee has, we think, a clear right of recovery therefor, and may have a lien on the land so sold, for its payment, with legal interest since the same became payable. A court of equity having jurisdiction of the cause, will be authorized to go on and do complete equity between the parties.
For the errors heretofore mentioned, the decree of the circuit court is reversed, and the cause remanded to the said court for further proceedings therein not inconsistent with this opinion.
Decree reversed.
This cause was originally assigned to Mr. Justice Dickey, and after his death was re-assigned by the court.