¶1 (dissenting). I dissent from the conclusion reached in the majority opinion. As I analyze the facts, I do not believe the law announced in syllabus 2 has proper application thereto. The plaintiff contends th'at the warranty deed involved was without consideration and was obtained by fraud and undue influence. With reference to this point the majority opinion finds “that the record justifies the conclusion of the trial court that there was no actual intent to perpetr'ate a fraud in the case at bar and many of the allegations of duress and undue influence were unsupported by the evidence.”
¶2 The trial court, who heard the testimony and observed the witnesses on the stand, found as follows:
“The court finds that said deed was b'ased upon a valid consideration and its execution and delivery by the plaintiff to the defendant was free from fraud, undue influence or other inequitable circumstances; that said deed is valid and conveys to the said defendant the fee simple title to the above-described premises.”
¶3 The plaintiff in this case was not a woman without experience in the transfer of real estate. She had inherited and disposed of the allotments received from three former deceased husbands. As I interpret the record in this case, she executed the deed in question voluntarily and under no *361 duress. As a matter of l'aw, she could have given the land to any person she. desired without consideration. Nor do I agree that there was a fiduciary relationship existing between the defendant Thornsbrough and the plaintiff. The defendant Thornsbrough had represented her husband, the allottee of the lands in question, while a practicing attorney in three divorce actions brought by her. He had never represented her as her attorney, but had been on the other side of the litigation referred to. Normally this would not tend to cause her to seek his advice nor would it establish a confidential relationship between the parties. As I interpret the transaction, it was a private one between plaintiff and Thorns-brough. The mere fact that Thornsbrough happened to be county judge when he attended to a business matter growing out of his former law practice did not cre’ate a fiduciary relationship and is not analogous to the rules of law applying to guardian and ward. Plaintiff did not prove such a rel'ationship of confidence or trust between herself and Thornsbrough as to shift the burden of proof to him to the extent that he was forced to show by clear and convincing evidence that there was no abuse of plaintiff’s confidence and that he had acted in good faith in the entire transaction. It is the application of the facts, as disclosed by the record, to the rule of law announced in syllabus 2 to which I especially dissent. Plaintiff had the burden of proof to sustain the allegations of her petition when she filed her action. I do not believe the burden of proof shifted to the defendant. The trial court found that the plaintiff had failed to maintain the burden; therefore it is my opinion that the judgment of the trial court should be affirmed.