#### Walter Bowles, Appellant, *vs.*Theodore B. Wathan, Respondent.

1. *Contraais*— Partial *performance*— Frauds, *statute of*— Specific *performance —Deeds—-Undue influence.*— A. made a deed to his daughter B. for certain, lands, but retained the deed, showing it to B. and her husband C., saying that she shonld have it at his death, but he wanted them to come and take charge of the property and live on it. B. and O. came and lived on the property and made improvements, and afterwards, hearing they had no title thereto, requested A. to give them the deed, threatening, in case of refusal, to' leave the land. A. finally gave them the deed, but took a conveyance of a part of the land, including the improvements, from them to him for his life. A. after-wards brought suit to set aside his conveyance, on the ground of undue in*262fluenee. *Held,*that, if B. and C. had remained on the land till A’s death, they oould have compelled his heirs to specifically perform the contract and convey the land to B., that A. only did in advance what he intended to do at his death, and that there was no undue influence exerted.

*Appeal from, Si. Charles Circuit Court.*

*Theodore Bruere and King & McDearmon,*for Appellant.

I. The defendant in concealing from plaintiff the fact, only known to himself, that it was almost certain his wife would die in a short time, committed a fraud upon the plaintiff in procuring a deed of gift to his wife, which therefore, contrary to the intention of the grantor, must result and did result to his own benefit. (8 *Wh.*& Tud. Oas. in Eq., 141,143; Huguenin vs. Baseley, 14 Yes., 299 ; Lyon vs. Home, 6 Eq. Oas. [Law], 655; Sears vs. Shaper, 6 N. Y., 268 ; Tyler vs. Gardiner 35 N. Y.', 559.)

II. As to what constitutes in law undue influence. (1 Sto. Eq. Jur., 264-271; 3 Lead. Oas. Eq., 125,127; 9 How., 552; 8 How., 183; 44 Mo., 465; 46 Mo., 147; 48 Mo., 483; 50 Mo., 206.)

III. Deeds excuted under undue influence must be set aside. (1 Sto. Eq. Jur., 264-271; 3 Lead. Cas. Eq., 125, 127, 136,137, 140,145; 8 How., 183; 44 Mo., 465; 46 Mo., 167; 48 Mo., 483; 14 Ves., 299.)

IY. Very little proof is required when a person is of extreme age, especially when .the deed is obtained without consideration. (1 Sto. Eq. Jur., 264-271; 44 Mo., 465; 46 Mo., 147; 48 Mo., 483; 50 Mo. 206;)

Y. That the donor is at the time of the gift a member of the donee’s family, and residing in the same house, is proof of moral duress and undue influence. (Poston vs. Gillespie, 5 Jones Eq., 258; Taylor vs. Taylor, 8 How., 183; Espey vs. Lake, 10 Hare, 262.)

*E. A. Lewis,*for Respondent.

I. The deed was in fact effectually delivered immediately after the marriage of plaintiff’s daughter, about four years *263before the transaction which is here set up as a delivery under undue influence.” (Eolly vs. Yantuyl, 4 Halst., 153 ; Sonverbye vs. Arden, 1 Johns’ Ch., 240; Chess vs. Chess, 1 Penn., 32; Scrugham vs. Wood, 15 Wend., 545.) ■

*Orrick*Emmons, for Respondent.

1. Old age of itself does not disqualify a person from making a valid deed, and being *compos mentis*he could legally be a disposer of his property, and his will stands for a reason. (1 Sto. Eq. Jur., 244; 7 Iowa, 60; 28 Wend., 255.)

Adams, Judge,

delivered the opinion of the court.

This was an action to set aside a deed, upon the alleged ground that it had been obtained by undue influence exercised by the defendant and his deceased wife over the mind of plaintiff. The answer denied all the material allegations of the petition. After a final hearing, the court dismissed the petition, and from this judgment the plaintiff has appealed to this court. The leading facts are about as follows: The plaintiff is eighty-three years old. In 1865 he made a partial distribution of his property. To each of his children he gave a deed for certain lands. The defendant’s wife was his pet child, and he made a deed of his homestead to her, but retained it in his possession, and intended to retain it till his death. The defendant lived in Kentucky, and married this pet child in 1866, and the morning after his marriage the plaintiff exhibited the deed he was holding for his wife, and told him they should have that property at his death, and he wanted them to come and take charge of the place and live on it. The defendant replied, that he had an engagement in Kentucky, which would detain them for one year, and that, as soon as his engagement expired, he would return with his wife, and at the expiration of his engagement he did return with his wife and took possession of the premises, and remained there making improvements, etc., for several years. After being there for some time, he and his wife learned that it was claimed that they had no more interest in the premises than the other children; and the defendant’s wife commenced *264importuning the plaintiff for the delivery of the deed. They threatened to remove from the place unless the deed should be delivered. The plaintiff resisted for some time, but finally compromised the'matter by delivering the deed and taking back from the defendant and his wife a deed for a part of the land for life, including the improvements. In the course of six months or so, the defendant’s wife had a child, and died in her confinement. .Before her confinement she made a will in favor of her husband and the child with which she was then enciente, devising the land covered by the deed in dispute to them. A short time after its birth, the child also died, leaving the defendant as the only heir at law. After the death of the child, the plaintiff complained that the deed in dispute was obtained by undue influence exercised over him by his daughter and her husband. At the time of the delivery of the deed, he shed tears, but had received a letter from one of his children, and the witness did not know, whether it was the delivery of the deed, or the news in the letter, that caused him to weep. These are the main facts as detailed in the evidence. It is manifest, from the evidence, that in delivering the deed the plaintiff was performing an act in advance, which he had all the time intended to have legal efficacy at his death. The defendant had taken possession of the premises and erected improvements and performed labor, under the assurance that the property should belong to his wife at the death of the plaintiff. If the defendant had remained on the place until the death of the plaintiff, under the contract which he had made with the plaintiff, he would have been legally entitled to a specific performance of the contract. (See Halsa vs. Halsa, 8 Mo., 303.) The contract in the case of Halsa vs. Halsa was in writing, but the only consideration was precisely the same as the one under review. When the purchase money is paid and possession taken and improvements made under, a verbal contract t.o convey land, such acts remove the case from the statute of frauds. In delivering the deed in question, the plaintiff was only doing in advance what the law would have compelled his heirs *265to do after his death. TJnder the circumstances, the death ot the wife would not have made any material difference. The child would have inherited the estate from its mother, and the defendant from his child. The evidence fails to show any undue influence in procuring, the deed. The plaintiff showed ample mental capacity. He resisted their importunities, and would not yield until he was provided for with a home for life. There seems to be no case for setting aside this deed on account of undue influence exerted by the defendant and his wife over the plaintiff.

Judgment affirmed.

The other judges concur.