¶1Action by appellant against appellees to cancel and declare void a certain deed, for a forty-acre tract of land situated in Rush county, Indiana, -executed by appellant to appellee Martha A. Ewing. The cause was tried by the court, which made special findings of fact, with conclusions of law in favor of appellees, and rendered judgment thereon against appellant. The errors properly assigned and relied on for reversal are that the court erred (1) in its conclusion of law, and (2) in overruling appellant’s motion for a new trial, on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.
¶2The special findings, in substance, are as follows: On February 10, 1908, plaintiff was an unmarried man seventy-seven years of age, in fairly good health and fairly well preserved for his years. He was illiterate and unable to read and write, but was of average intelligence and business ability. He had been twice married, and both of his wives were deceased. Four children by his first marriage and four by his second marriage were living, all of age. In the year 1904 he deeded the fee in his “home farm” of 140 acres to his children, reserving for his own use and benefit a life estate *522therein, and he has since received the rents and profits therefrom. On February 10, 1908, forty acres of real estate, adjacent to his “home farm”, was the only land owned by him in fee. He had said he was retaining this tract in order to give it to the person who would take care of him. Because of his age and intemperate habits, it had been necessary for some years for some one to live with and care for him, and since the death of his second wife one or more of her children had done this. His children by both wives were married, except his youngest son, Jesse Ruby, who was a professional baseball player, and was at home very little. Frances Wolfe, his youngest daughter, was married prior to August, 1906, and since that time had not lived at her father’s home. Defendant Martha A. Ewing, the oldest daughter by the second wife, lived on a farm, owned by her husband’s father, prior to August, 1906. Edward Ruby, the oldest son by the second wife, his wife and children, who had lived at the home place with plaintiff, and taken care of him under a rental contract for some time, notified his father and sisters in August, 1906, that he would stay there no longer than fall, and left shortly after. The children of the second wife, except Jesse, discussed the matter, and agreed that it was not then practicable for Mrs. Wolfe and her husband to leave their home and live with her father. So, at the request of plaintiff and Frances Wolfe, defendants Martha A. Ewing and’ Greeley Ewing, her husband, moved in with plaintiff at the home place about August, 1906, under a rental contract of the same terms as that which Edward had with his father. Defendants and plaintiff carried out their agreement, and plaintiff lived with defendants until February 19,1908, when he left said home at the solicitations and under the coercion of his son Edward Ruby, and has since that time made his home with Edward Ruby and Frances Wolfe, and has not resided Avith his daughter Martha A. EAving, though he has five or six times visited her in the company of some other person. During the greater por*523tion of Ms life, and for many years prior to February 10, 1908, plaintiff was addicted to the use of intoxicating liquor, and often used it to excess; and at times became incapacitated for business; and even for caring for himself, which defendants knew. At certain times from August, 1906, to February, 1908, when he w;as brought home by friends, Ms daughter Martha A. Ewing cared for Mm as his condition required. Plaintiff continued to drink, and on account of his having exposed himself to cold weather and to various dangers, Martha A. Ewing concluded that it would be better for him to keep him at home and control his drinking, rather than to let him go on drunken sprees away from home. She consulted doctors who had formerly treated plaintiff, and they advised that, because of his. former habits, she give him small quantities of whisky at intervals, but not enough to make him drunk. Pursuant to this policy, Greeley Ewing during the winter of 1907 and 1908 purchased whisky at the request of plaintiff, and it was administered to him at his home on an average of three times a day during November, December and January. During January his daughter Martha was compelled to conceal the whisky from plaintiff, except when she administered it to Mm, but he succeeded in finding it frequently, and during the latter part of January and the first part of February he was more or less intoxicated all the time. On February 8, 1908, the supply of liquor at his home gave out, and he had no whisky from 10 o’clock that day until after February 10, and on said February 10 he was in Ms right mind and sober. On February 3 he rolled out of bed and fell on a chair, fracturing three of his ribs, and was in pain on this account for three or four days. A physician called on February á to treat the fracture advised giving him whisky in small amounts. On the forenoon of February 10 his son Edward came to plaintiff’s home, and, in the presence and hearing of appellee, offered to give $2,500 for the land in controversy, $500 to be paid to each of the four children of plaintiff by his sec*524ond wife, and to Mrs. Lee, one of Ms cMldren by Ms first wife. To tMs Martha A. Ewing objected, and told her father and brother that it would not be fair to the three children by the first wife who would get nothing by such sale. Plaintiff refused to sell said land to Edward, and the latter left the homestead. Shortly after this, plaintiff stated to Martha A. Ewing that he knew what was up, that the boys were trying to get the forty-acre tract, and that he would put it where it belonged; that he had given the boys and Fannie all he expected them to have, and he would give the forty-acre tract to Martha, if she would keep him the rest of his life; that he wanted her and her husband to live with him, wanted to fix the thing right now, and wanted the deed made like the old ones, so he would get the rents and profits during his lifetime. Thereupon Martha accepted his proposition, and agreed to perform her part. Plaintiff told Greeley Ewing to get Owen S. Hill, the notary who had made the former deeds, which he did, and Hill came to the house in the afternoon of the same day — February 10, 1908 — and plaintiff conveyed by warranty deed to his daughter Martha A. Ewing the forty acres of real estate described in the complaint, which deed was duly acknowledged before Owen S. Hill of Carthage, Indiana, a notary public, and was duly delivered to the grantee therein on the same day it was signed, but no actual money consideration passed between the parties. The notary read the deed to plaintiff before he signed it. This deed is in the ordinary short form of warranty deeds, the consideration being stated as “love and affection and $1, the receipt whereof is hereby acknowledged.” The conveyance is made “subject to rents and profits and possession during •the life”of the grantor, and is signed by plaintiff by his mark. It is properly acknowledged, and was duly recorded the next day. Plaintiff, after the deed was read in his presence by the notary, said: “Well, let me sign it.” After he signed it by making his mark, and acknowledged it, he said: “If Martha dies before I do, the land is mine.” Thereupon the *525notary delivered said deed to Martha A. Ewing, and the next morning plaintiff told Martha’s husband to take the deed to Rushville and have it recorded, which he did. Defendants fully carried out and observed all the provisions of the rental contract that they and plaintiff entered into at the time they moved upon his farm, and have been at all times, and are now, ready and willing to carry out the provisions thereof, and to comply with and fulfill ’all the provisions of the deed executed by plaintiff to his daughter. Before bringing this suit plaintiff requested defendants and each of them to re-convey to him the forty acres .of land, which they and each of them refused to do.
¶3The conclusion of law is as follows: “Prom the above facts I conclude that the law is with the defendants, and that they should recover of and from the plaintiff their costs in this action laid out and expended.”
¶4Appellant’s counsel contend that the evidence, if not the special finding of facts, shows that the deed in controversy was executed by an aged, illiterate man, who did not comprehend its terms, but believed that it conveyed an estate that would revert to appellant if appellee Martha A. Ewing should die before him, and believed that it bound her to maintain' him during his life, which facts were known to appellees, and appellant would not have executed the deed had he not misapprehended the contents and purport thereof. It is also contended that the evidence and finding of facts show that the deed was obtained through fraud, imposition and duress practiced by one who occupied a fiduciary relation to appellant, an old, illiterate man, who at the time of making the deed was intoxicated, and was suffering from the effects of a prolonged spree and from broken ribs.
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¶7As to appellant’s being intoxicated, the testimony of practically all the witnesses is that he was sober and in his right mind on the day the deed was made. Appellees testify positively that there had been no whisky in the house since February 8. To offset this, there is merely appellant’s testimony that he had whisky and was rather drunk, which he based on his general recollection that his daughter had been giving him three drinks of whisky a day near that time, and that ordinarily he had whisky, and during the past month had been drunk most of the time. However, appellant’s general recollections are shown to have been very poor.
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¶10Judgment affirmed.