This suit wаs instituted in the circuit court of Vernon county to set aside and cancel a deed executed in 1876 by plаintiff, Rhoda C. Wood (now Rhoda Jackson), conveying to Austin 0. Wood certain land in the petition described. The сircuit court rendered a decree according to the prayer of the petition, cancеlled the deed, and invested the title in plaintiff, subject to a mortgage which had been put upon the land by said Wood to secure the payment of five hundred dollars. From this decree the defendant has appeаled to this court and seeks to reverse it on the ground that it is not supported by the evidence. Since the appeal to this court the death of defendant was suggested and the cause reyived in the name of his heirs.
The petition charges in substance that plaintiff Jack, son was the wife of Gallatin A. Wood, who died in January, 1874, the owner in fee of the land in controversy-which was his homestead ; that after his death she continued to reside on the land till some time in 1878, when, she married-her co-plaintiff Jackson ; that A. 0. Wood, who was a son of said Gallatin A. Wood by a former marriage, took charge of matters connected with the farm after his father’s death; that confidential relations existed between plaintiff and defendant; that defendant always represented to her that she- was only entitled to one-third of the land; that she was illiterate and unable to read or writе ; that in August, 1876, relying on defendant’ s representations as to the value and quantity of her interest, she acceрted an offer of two hundred and thirty dollars for her interest in the land ; that defendant brought a deed for her to be signеd, and pretended to xead the same to her as conveying one-third interest
When the grantor in a deed seеks its cancellation and a reinvestiture of title on the ground of fraud or mistake, the onus of establishing the fraud is upon bim •or her, and before relief can be granted the fraud or mistake must be established by clear and' convincing evidence. This class of cases is analogous to that class where :a resulting trust is sought to be established by рarol evidence, in which, in the cases of Johnson v. Quarles, 46 Mo. 423, and Forrester v. Scoville,
Greer and his Avife both testifiеd to a conversation had with plaintiff in the latter part of the summer or fall of 1876 in Avhich she claimed to be thе absolute owner ■•of the land. The character of Greer was impeached by three witnesses and sustаined by threp. Besides this, plaintiff testified that the deed was acknowledged before Mr. Ely, a justice of the pеace, who started to read'the deed to her and that defendant stopped him, saying that Ihe had reаd the deed to her, and that he said not to read it to her again. In this she is contradicted by the justice, who states in his evidence, that he asked if he ishould read the deed, and Austin said- “he had read it rto her, but you can read it аgain if she wishes to hear ¡itthat defendant was willing for him to read it. She ¡also testified that John Wood did not go with them to \the justice’s when the deed was acknowledged, and that mo one Avas present but Austin and John Wood, and Mrs. ¿Ely. In this she is contradicted by Ely, Austin and .John Wood. The preponderance of the evidence is on \the side of defendant instead of plaintiff, and under the jrale indicated in the outset of this opinion the decree cannot be permitted to prevail. ' Judgment reversed,