
    Brooks v. Brooks.
    
    (Division B.
    Feb. 14, 1927.)
    [111 So. 376.
    No. 26225.]
    Contracts. Deeds. There must he meeting of minds of parties to render contract valid; equity will set aside deed fraudulently procured by son from father, who was unable to read and write and who reposed confidence in son; evidence of lacle of meeting of minds of parties and fraudulent concealment held to support decree setting deed aside.
    
    In order for a contract to be valid, there must be a meeting of the minds of the parties to it. And where a father signs a deed, believing that it contains agreements material to ■ the contract, which, in fact, it does not contain, and where he is unable to read and write and reposes trust and confidence in his son in whose favor the deed is made, who procures a different deed from that intended to be made, equity will set it aside.
    
      Appeal from chancery court of Simpson coiinty.
    HoN. T. P. Dale, Chancellor.
    Suit by E. B. Brooks against H. L. Brooks. Prom a decree for complainant, defendant appeals.
    Affirmed.
    
      May, Sanders & M'cLcmrin, for appellant.
    What title did the complainant have to convey when the second deed was executed without a re-conveyance from defendant to complainant? The rule which our court has established is that where a deed has been once duly executed and delivered, a subsequent surrender and destruction of it cannot divest the estate of the grantee which passed by the deed. Whitt on v. Smith, Freeman’s Chancery 231; Burton v. Wells, 30 Miss. 688. In Pierce v. Garrett, 107 So. 885, Mr. Justice ANdebsoN reviews the Mississippi cases.
    It being -obvious that the second deed could not he can-celled for breach of the obligations set out in the first deed, the only other ground of cancellation would be fraud, and as above stated, neither the original nor the supplemental bill contains sufficient allegations of fraud.
    
      W. M. Lofton and Bee King, for appellee.
    The contention of appellee is that when he signed this deed he did not understand its provisions, and that he was induced to sign it by appellant for the purpose of defrauding him and placing the land beyond his reach. The court below rendered the only decree that could have been rendered according to the principles of equity and the dictates of humanity. Hester v. Hooker, 7 S. & M. 768. - ■_
    Fraud vitiates all contracts. The facts leading up to this transaction show in unmistakable terms that there was a fiduciary and confidential relationship existing between the father and the son in this case. See Bunch v. Shannon, 46 Miss. 525; Mortimer et al. v. Hanna, 82 Miss. 645, 35 So. 159.
    
      
      Corpus Juris-Cyc. References: Contracts, 13CJ, p. 263, n. 74; p. 264, n. SI; Deeds, 18CJ, p. 232, n. 1; p. 447, n. 46. “Meeting of minds” of parties as essential to validity of contract, see 6 R. C. L. 599; 2 R. C. D. Supp. 161; 5 R. C. D. Supp. 357; 6 R. C. L. Supp. 400.
    
   Ethridge., J.,

delivered the opinion of the conrt.

The appellee filed a hill in the chancery conrt to set aside and cancel the conveyance of certain lands executed by himself and wife to the appellant on the 29th day of October, 1924. There was a decree by the chancery conrt sustaining’ the relief prayed for in the bill, from which decree this appeal is prosecuted. .

The appellee, it appears, was the father of the appellant and other children. He and his wife lived alone, and being* afflicted with heart trouble and nnable to do anything, he needed the care and protection of some of. his children. Therefore an agreement was entered into by the appellant and the appellee that the appellant wonld move on the place and live with the appellee (his father) and his wife, provide for them, and give them the necessary care and attention; that the lands owned by the the appellee and occupied by him, described in the bill, would be deeded to the appellant, to take effect after the death of the grantors (the appellee and his wife), provided that, after the death of the grantors (appellee and his wife), appellant would pay to the daughter of ap-pellee the sum of two thousand dollars out of the proceeds of the place or money raised by him .for that purpose. An attorney was sent for, who prepared a deed embodying this agreement of the parties and expressly providing:

‘‘That this deed is not to take effect until after the death of both of the grantors, but it is understood and so provided that the said grantee shall after the 1st day of January, 1925, have the right to occupy, use, cultivate, lease, or rent such lands, provided such grantee shall, to the satisfaction of the grantors, support and maintain them (the said grantors). And it is further provided that in case the grantors shall survive the grantees, then the heirs of the grantees shall have the right to carry out all the provisions of this deed, but it is understood that the right of the grantee or his heirs to use and occupy the said lands will in no way interfere with or deprive the grantors of the right to occupy said lands and premises at their pleasure.”

Subsequent to the execution of this deed, the appellant represented to the appellee that appellee’s daughter and her husband were dissatisfied with the arrangement and insisted that the appellant pay them the two thousand dollars then; that he would like for appellee to change the deed so as to give appellee’s dáughter seventy acres of the land in lieu of the two thousand dollars, and thereby relieve appellant of the obligation to pay appellee’s ■ daughter two thousand dollars out of the proceeds of the place, which the appellee agreed to do. The appellant thereupon sent for a person, not a lawyer, to fix the papers so as to effect this purpose. This person drew a straight deed in fee simple, without any conditions attached thereto and without embodying the agreement therein, which deed was signed by the appellee and his wife and witnessed by two persons, one of whom after-wards made affidavit as a subscribing witness, and the deed was recorded on the 1st day of November, 1924, in the Records of Deeds in the county..

The appellee testified that he could neither read nor write, that he did not understand land numbers and was incapable of judging, from a reading of the deed in land numbers, the legal effect thereof; that he thouglit he was signing the deed as originally drawn with ah alteration eliminating the ■ two thousand dollar provision for ap-pellee ’s daughter and substituting therefor seventy acres of the land originally conveyed to the appellant; that he did not know he was signing a new deed, and was not informed by any one of the persons present at the time of the signing of the papers of the changed effect of the new- deed. He testified, further, that subsequently, on discovering this or learning that it was a new deed — that it was, in fact, a fee-simple deed — he took the matter up with his son (appellant), who agreed to have the deed corrected so as to embody the agreement and understanding set ont in the original deed, bnt that he had neglected to do so; that, finally, appellant became dissatisfied and proposed to move away.; that appellant asked the grantors (the appellee and his wife) if they wonld go with him to his premises, which they did not desire to do; that the appellant proposed to place another person on the place as a tenant, bnt this person wonld not agree to go on the place unless the grantors, the appellees herein, wonld move ont of the house on the place, which they were unwilling and declined to do; that the appellant then proposed to move away and let the appellee and his wife remain in their own home and handle the place, to which appellee agreed, provided appellant wonld restore him to the condition he was in when the first agreement was entered into, which the appellant agreed to do; that a question arose as to some improvements his son (the appellant) had made on the premises, and some other items, and the appellee surrendered to the appellant a note for eight hundred fifty dollars in satisfaction of his claim, and the appellant promised to reronvey the lands to him but failed to do so, and finally refused to do so.

Appellant’s version was that they entered into the original contract, as stated; that his sister (the daughter of the grantor) insisted that he (the appellant) pay her the two thousand dollars at once; that he approached his father about making a change in the papers, and requested that a deed to certain land be made to his sister in satisfaction of the two thousand dollars, so as to eliminate her from the transaction; and his father acceded to his request; that a deed was prepared by a scrivener, which was read to his father and was satisfactory to him at that time, but that subsequently his father became dissatisfied and compelled him (appellant) to leave the place. Appellant denied that the note wliioli was surrendered to him at that time was for eight hundred fifty dollars, but admitted that there had been certain payments made on the note. Appellant stated that he left as much on the place as he fouhd there; that he did not intend to surrender his right 'under the deed, but intended that his father should remain on the place and use it for his support during his lifetime and retain his title thereto at his father’s death.

There is no real dispute about what was said at the time the son proposed to have the deed changed, and there is no contention in the evidence of the appellant that the agreement leading up to the change was to give him a fee-simple title to the land freed from the obligation to support, which was the consideration therefor.

This court has held in several cases that a mere breach of an agreement to support, as a consideration for a deed, is not sufficient to justify the setting aside of the deed for the support, and that there is no lien, unless expressly reserved, which would authorize the chancery court in charging the lien upon the 'property. Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; Lee v. McMorries, 107 Miss. 889, 66 So. 278, L. R. A. 1915B, 1069; Dixon v. Milling et al., 102 Miss. 449, 59 So. 804, 43 L. R. A. (N. S.) 916. We think, however, that the chancellor’s finding can be sustained and the decree upheld upon the evidence in the record on the theory that the minds of the parties did not meet in the execution of the last deed, and that there was a fraudulent concealment of the effect of the provisions of the deed, the father being unable to read and at an age when his mind was not capable of acting with the same intelligence as his son’s mind acted. Under the facts then existing, there was a relation of confidence between the father and the son; and we think the trust reposed in the son by the father called for the fullest and freest disclosures of the purposes of the son in procuring the execution of these papers, which was not reciprocated by the son. And this is strengthened by the fact that there was a verbal .agreement at the time the son moved away, supported by the payment of money, by which the rights of the son to the place would be surrendered and canceled. The verbal agreement, even though accompanied by a consideration, would he insufficient to support a decree for reconveyance, but, taking all the circumstances together, we think it is clear that the complainant was entitled to the relief prayed for, and the judgment of the lower court will be affirmed.

Affirmed.  