
    Tucker, administrator, v. Tucker et al.
    
    February 15, 1917.
    Equitable petition. Before Judge Eite. Whitfield superior court. December 17, 1915.
    
      W. G. Martin and M. G. Tarver, for plaintiff.
    
      Sam P. Maddox, W. E. Mann, and George G. Glenn, for defendants.
   Eish, C. J.

This is an action by an administrator seeking to have canceled a deed executed by his intestate to the defendant, on the ground of fraud and undue influence exercised by the grantee and inducing the execution of the instrument. The petition sought to recover also the value of corn produced on the land during the year and shortly before the conveyance was made, as well as the proceeds of the sale of a certain sawmill located on the land; and the value of timber taken from the land by a third person under a written contract executed by the defendant and the intestate jointly, a few days before the execution of the deed. Held:

1. Under the admission in the answer and the evidence introduced on the trial, the plaintiff made a prima facie case for recovery of the, value of the corn.

2. There was no evidence, except hearsay (which was of no probative value, as it did not fall within any of the exceptions providing for the admission of such evidence), to authorize a verdict finding fraud and undue influence by the defendant as alleged, upon which to support a decree for cancellation; nor was there evidence to make out a prima facie case for the plaintiff as to the value of the sawmill, nor for the timber taken from the land.

3. The judgment granting a nonsuit is reversed on the ground of the error in not submitting to the jury that branch of the case involving the corn. Judgment reversed.

All the Justices concur.  