Present: All the Justices 

TERRY HENDERSON 

v. Record No. 970503 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 9, 1998 

EARL E. HENDERSON 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gerald B. Lee, Judge 

 In this appeal, we decide whether the trial court erred in 

rescinding a deed of gift conveying real property from a 

grandfather to his granddaughter. 

 By deed of gift dated June 27, 1994, Earl E. Henderson 

(Henderson) conveyed to his granddaughter, Terry Henderson 

(Terry), a 1.19-acre parcel of real property in Fairfax County. 

The property included a log house built by Henderson. At the 

time of the conveyance, Henderson was 92 years old. 

 In June 1995, Henderson filed a bill of complaint against 

Terry seeking rescission of the deed of gift on the grounds of 

undue influence and constructive fraud. According to the bill of 

complaint, at the time of the conveyance Henderson was in a 

weakened state of mind because his wife of 65 years had died 

about one year before the conveyance, and he had suffered several 

minor strokes. The bill of complaint further alleged that 

Henderson's state of mind made him particularly vulnerable to 

Terry's suggestion that he sign the deed, and that Terry 

"deceptively" represented to Henderson that "there would not be 

any taxes on it." 

 In a bench trial, Henderson gave the following testimony. 

In the late 1980s, Terry asked him for permission to live in the 
log house. Henderson agreed, and Terry and her daughter moved 

into the house. Henderson never discussed with Terry the 

possibility of giving her the property. He considered selling 

the property but was informed that he would have to "pay more 

[taxes] than I received for the place." In June 1994, the value 

of the property was about $400,000. 

 Henderson stated that on the day he conveyed the property to 

Terry, he was living in the home of one of his daughters. Terry 

arrived at the house with no advance notice. That day was his 

first wedding anniversary after his wife's death. Since his 

wife's death, Henderson was depressed, lost his appetite, lost 

weight, and "almost lost the desire to live." 

 According to Henderson, Terry had a deed with her and said, 

"This is the deed to the log house. Will you sign it?" As a 

result of his depression, he "took [the deed] and looked at it 

and things kind of seemed unreal to me, you know. So I signed 

it." He did not feel any pressure to sign the deed, but was in 

"kind of a mental fog . . . and I just kind of, you might say, go 

[sic] along with the flow." 

 Before signing the deed, Henderson asked Terry if there 

would be any tax consequences from the gift. Terry said that 

"there would be a small income tax or insignificant income tax, 

and that was it." Henderson later realized he had made a mistake 

when he learned that there would be "very big tax consequences" 

as a result of the gift, despite Terry's statement to the 

contrary. 

 Henderson stated that, about eight months later, he wrote 
Terry a letter requesting that she transfer the property back to 

him. This request was based on his lawyer's advice that he 

transfer property only through his will, and on his own desire 

for financial security and the restoration of harmony within the 

family. 

 Terry testified to a very different version of events 

surrounding the execution of the deed of gift. She stated that 

prior to the conveyance, her grandfather had told her that he 

wanted to keep the log house in the family and had discussed 

giving the property to Terry and her sisters. In April 1994, 

Henderson told Terry that he wanted her to have the property 

because her sisters did not want it. 

 On June 27, 1994, when Terry asked Henderson whether he 

would consider signing a deed conveying the property to her, he 

agreed. Terry said, "Pop, I have gone and I've done the title 

search and I've had a good Virginia attorney put together a deed 

. . . . I'll give it to you. You can just read it over and see 

what you think about it." 

 According to Terry, Henderson then read the deed and asked 

Terry whether there "were any taxes on this." She pointed to 

the margin of the deed and said, "No, there's no transfer taxes 

owed on the property." Henderson then said that he wanted to 

sign the deed, and they went to his bank where he signed the deed 

before a notary public. 

 Three physicians, including Henderson's family physician, 

testified that on the date of the conveyance, Henderson was 

incompetent, incapable of making a major financial decision, and 
vulnerable to suggestion. At the conclusion of the evidence, the 

trial court found that Henderson had a "weakness of mind" at the 

time of the conveyance. However, the trial court dismissed the 

claim of undue influence on the ground that Henderson did not 

prove that he and Terry had a confidential or fiduciary 

relationship. 

 The trial court ruled that Henderson met his burden of proof 

on the constructive fraud claim and ordered Terry to convey the 

property back to Henderson. Terry assigns error to this ruling. 

 Terry argues that Henderson did not meet his burden of 

proving the elements of constructive fraud by clear and 

convincing evidence. First, Terry contends that Henderson failed 

to prove the false representation asserted in his bill of 

complaint, namely, that Terry told him he would owe no tax as a 

result of the conveyance. Instead, Terry notes, Henderson 

testified that Terry told him there would be a small amount of 

tax owed after the transfer. Citing Massie v. Firmstone, 134 Va. 

450, 114 S.E. 652 (1922), Terry argues that Henderson is bound by 

his testimony and, thus, failed to prove the false representation 

alleged in his bill of complaint. 

 In response, Henderson argues that credible evidence 

supports the trial court's findings. Henderson also contends 

that since he suffered from a weakened state of mind and received 

"inadequate consideration" for the conveyance, he was entitled to 

rescission of the deed. We disagree with Henderson. 

 Fraud, whether actual or constructive, is never presumed and 

must be strictly proved as alleged. See Poe v. Voss, 196 Va. 
821, 827, 86 S.E.2d 47, 50-51 (1955); Martin v. Williams, 194 Va. 

437, 445-46, 73 S.E.2d 355, 359-60 (1952). The elements of a 

cause of action for constructive fraud must be proved by clear 

and convincing evidence. Blair Constr. v. Weatherford, 253 Va. 

343, 346, 485 S.E.2d 137, 138 (1997); Evaluation Research Corp. 

v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390 (1994). 

 A finding of constructive fraud requires proof that a false 

representation of a material fact was made, innocently or 

negligently, and that the injured party suffered damage as a 

result of his reliance on the misrepresentation. Mortarino v. 

Consultant Eng. Services, 251 Va. 289, 295, 467 S.E.2d 778, 782 

(1996); Alequin, 247 Va. at 148, 439 S.E.2d at 390. In addition, 

the evidence must show that the false representation was made so 

as to induce a reasonable person to believe it, with the intent 

that the person would act on this representation. Mortarino, 251 

Va. at 295, 467 S.E.2d at 782; Alequin, 247 Va. at 148, 439 

S.E.2d at 390. 

 Here, Henderson sought to prove that Terry falsely 

represented that there would not be any taxes due as a result of 

the conveyance. Henderson's own testimony, however, was that 

Terry told him that "there would be a small income tax or 

insignificant income tax, and that was it." He also stated that 

Terry told him "that there was an exclusionary clause that 

covered a small part of it." Thus, Henderson's testimony fails 

to support the misrepresentation alleged in his amended bill of 

complaint. 

 In Massie v. Firmstone, we stated: 
 No litigant can successfully ask a court or jury 

to believe that he has not told the truth. His 

statements of fact and the necessary inferences 

therefrom are binding upon him. He cannot be heard to 

ask that his case be made stronger than he makes it, 

where, as here, it depends upon facts within his own 

knowledge and as to which he has testified. 

134 Va. at 462, 114 S.E. at 656. 

 The Massie doctrine rests on the premise that a litigant 

should not be permitted to profit at another's expense by asking 

the trier of fact to make findings that contradict the litigant's 

own sworn statements about facts within his knowledge. Such 

statements by a litigant, when unequivocal and against his own 

interest, have the effect of judicial admissions. See Baines v. 

Parker, 217 Va. 100, 105, 225 S.E.2d 403, 407 (1976). 

 The Massie doctrine must be applied in the context of the 

litigant's entire testimony. See id.; Ford Motor Co. v. 

Bartholomew, 224 Va. 421, 431, 297 S.E.2d 675, 680 (1982). 

Therefore, an adverse statement by a litigant that stands in 

isolation from the rest of his testimony concerning the fact at 

issue will not trigger the Massie preclusion. Id.; VEPCO v. 

Mabin, 203 Va. 490, 494, 125 S.E.2d 145, 148 (1962). Generally, 

the trier of fact must decide whether to accept any clarification 

or explanation offered by the litigant. Id.

 Here, Henderson did not offer any clarification or 

explanation of his testimony that Terry said there would be a 

small amount of tax, as opposed to no tax, due as a result of the 

conveyance. Therefore, his testimony had the effect of a 

judicial admission and Henderson failed to prove the material 

misrepresentation alleged in his amended bill of complaint. 
 We disagree with Henderson's contention that a different 

result is required because the trial court found that he suffered 

from a weakness of mind, and because there was "inadequate 

consideration" in support of the conveyance. Henderson's 

weakness of mind at the time of the conveyance cannot alter his 

unequivocal testimony that Terry told him that a small amount of 

tax, rather than no tax, would be due as a result of the 

conveyance. Further, there is no issue of adequacy of 

consideration in this case, since the property was conveyed by 

deed of gift. Therefore, Henderson's reliance on our holdings in 

Payne v. Simmons, 232 Va. 379, 350 S.E.2d 637 (1986), and Long v. 

Harrison, 134 Va. 424, 114 S.E. 656 (1922), is misplaced. Those 

cases recognized the remedy of rescission for individuals 

suffering diminished mental capacity who receive grossly 

inadequate consideration for contracts, not deeds of gift. 

 For these reasons, we will reverse the trial court's decree 

and enter final judgment in favor of Terry Henderson. 

Reversed and final judgment.