1. The plea of fraud as amended, taken as a whole, would be a defence to the action if established by proof. It does not directly aver that Mrs. Andrews died intestate, or that the defendant is one of her heirs at law, but these matters are inferable from some of the facts alleged in a previous part of the answer, and there was no special demurrer. The plea was full enough to withstand a general demurrer. This being so, there was no error in refusing to strike it on motion, especially as the motion was delayed until the evidence was all in, and was based, not upon any want of sufficiency in the plea, hut upon there being no evidence to support it. "We have not yet heard of any law that requires a plea to be stricken because it is not sustained by the evidence. That the learned judge who tried the case was also ignoi’ant of it, is strong presumptive evidence to our minds that it does not exist.
2. The fifth ground of the motion for a new trial complains of error in the charge of the court to the jury as follows: “ If T. A. Andrews obtained her (Mrs. Andrews’) confidence, and if she was overreached, misled and deceived by him,-by his fraudulently and falsely representing to her that the paper was not a deed, but was a paper of some other character; and if, by reason of her confidence in him and the practice of such fraud, if he did so practice it, she was so fraudulently induced to sign the paper under the impression *283that it did not affect her title to the property, but was only intended to secure and protect her interest in the land, she would be allowed, if in life, to plead these facts, if they exist, in bar of the deed; and under such circumstances his heir at law would not be, estopped from pleading the same things.” The objection is, that there was no evidence on which to predicate this instruction. And, indeed, there is none to be found in the record before us. There is no hint or intimation that Mrs. Andrews was overreached, misled or deceived by her son, T. A. Andrews, or that he made to her any false representation, or that she was induced to sign the deed under the impression that it did not affect her title, etc., etc. For aught that appears, she knew the contents and effect of the deed as well as he did. The evidence affords glimpses of a purpose, not to deceive and impose upon Mrs. Andrews, but to aid her in covering this land so as to protect it against creditors. That more on this subject is known than has been yet told from the witness stand is highly probable. We think further inquiry should be made into the reason why T. A. Andrews was treated as the owner of ten acres of the land when the wife of his brother, the defendant, wanted to purchase, and why the tax books show a return by the defendant as agent for T. A. The most certain thing about the case is that the whole truth of it is not out. Let the fraud which was really sought to be perpetrated be exposed, and no imaginary fraud be substituted by vague conjecture. But a still better course would be for these litigants to compose their differences by amicable settlement. We hope they can do so, and that there will b.e no occasion to try the ease again.
