"Where a person has parted with his property in consideration for support for life and discord thereafter arises between the parties so that it becomes impossible to perform the conditions and agreements made in consideration of the execution of the deed, courts are disposed to restore to the grantor the property if it can be done without manifest injustice to the grantee." Plaintiff also cites Morton v. Roberts, 88 Okla. 263, 213 P. 297, where we held: "Ordinarily mere inadequacy of consideration is not sufficient ground in itself to justify a court in cancelling a deed, yet when the inadequacy is so gross as to amount to fraud, or, in the absence of other circumstances, to shock the conscience and furnish satisfactory and decisive evidence of fraud, it will be sufficient ground for cancelling a conveyance."
In support of her contention she invites the court's attention to the fact that this is a parent and child relationship wherein the deed involved was executed without consideration or for a grossly inadequate consideration and, therefore, falls within that class of cases wherein fraud and undue influence is presumed, and the burden is on the donee (defendant) to overcome the presumption of fraud arising from such circumstances. She further invites our attention to Flowers v. Flowers, 94 Okla. 134, 221 P. 483; Haggerty v. Key, 100 Okla. 238, 229 P. 548; Noblin v. Wilson, 187 Okla. 173, 101 P.2d 805; Fickel v. Webb, 146 Okla. 16, 293 P. 206; Morton v. Roberts, 88 Okla. 263, 213 P. 297; 26 C.J.S., Deeds, §§ 193, 211, pp. 612, 613, and 653; Fairbank v. Fairbank, 92 Kan. 45, 139 P. 1011; Piercy v. Piercy, 18 Cal.App. 751, 124 P. 561; Nobles v. Hutton, 7 Cal.App. 14, 93 P. 289, and others, the effect of the rule being in all such cases, that in case of a gift or voluntary conveyance, or a total want or gross inadequacy of consideration, slight evidence of fraud, overreaching, or undue influence will justify the cancellation of deeds, the execution and enforcement of which shocks the conscience of the chancellor. We have carefully examined the cases offered by plaintiff, and suffice to say that the factual situations in each of said cases are not comparable to the facts in the instant case.
There was nothing about this transaction which would shock the conscience, and plaintiffs certainly were not entitled to recover on the grounds of lack of consideration. Morton et al. v. Roberts et al., 88 Okla. 263, 213 P. 297. In our opinion there was no fraud or lack of consideration proved in this case.
"However, if the inadequacy of consideration is so glaring as to stamp the transaction with fraud and to shock the common sense of honesty, a court of equity will intervene." 16 Am. Jr. Deeds, 33. The rule was stated in the syllabus in Morton v. Roberts, 88 Okla. 263, 213 P. 297, as follows: "Ordinarily mere inadequacy of consideration is not sufficient ground, in itself, to justify a court in canceling a deed, yet when the inadequacy is so gross as to amount to fraud, or in the absence of other circumstances, to shock the conscience and furnish satisfactory and decisive evidence of fraud, it will be sufficient ground for canceling a conveyance."
It is true that in a number of cases this court has reversed in part and affirmed in part the judgment of the lower court. See Allen v. Allen, 85 Okla. 240, 205 P. 504; Morton v. Roberts, 88 Okla. 263, 213 P. 297; Norris v. Hare, 126 Okla. 214, 259 P. 532; Fuqua v. Watson, 172 Okla. 624, 46 P.2d 486; Kapsemalis v. Douglas, 177 Okla. 522, 61 P.2d 211; Leeper, Graves Co. v. First Nat. Bank, 26 Okla. 707, 110 P. 655. But in all these cases it is to be noted that the judgment was composed of several distinct and separate parts, either as to the subject matter or as to the parties involved, and the affirmance was as to one separable and independent part and the reversal as to another.
"When the plaintiff makes out a prima facie case of fraud, the burden shifts to the one claiming to be an innocent holder to prove that his interest was acquired without notice of the defect, in good faith, and for value." The rule is followed and exemplified in Adams Oil Gas Co. v. Hudson, 55 Okla. 386, 155 P. 220 (see section 2 of the syllabus); Whayne v. Seamans, 95 Okla. 168, 217 P. 859 (section 1 of the syllabus); Austin v. Evans, 132 Okla. 238, 270 P. 26 (section 1 of the syllabus); Tucker v. Leonard, 76 Okla. 16, 183 P. 907 (section 9 of the syllabus); McIntosh v. Holtgrave, 79 Okla. 63, 191 P. 739 (section 5 of the syllabus); Myers v. Harness, 116 Okla. 268, 244 P. 1109 (section 3 of the syllabus); Morton v. Roberts, 88 Okla. 263, 213 P. 297 (section 3 of the syllabus); Choctaw Lumber Co. v. McKeever, 119 Okla. 282, 249 P. 712 (section 2 of syllabus). Unnecessarily the plaintiff below apparently assumed the burden of making prima facie proof that the oil company was not an innocent purchaser.
"Courts will not by reason of the insufficiency of the consideration to support a contract make a new contract for the parties or cancel contracts which have been inadvertently made, but if the consideration is so small as to appear to be unconscionable, the smallness of the consideration may be looked to as evidencing a fraud or undue influence practiced by the party benefiting by the contract. The rule has been thus stated in Morton v. Roberts, 88 Okla. 263, 213 P. 297: " 'Ordinarily mere inadequacy of consideration is not sufficient ground in itself to justify a court in canceling a deed, yet when the inadequacy is so gross as to amount to fraud, or, in the absence of other circumstances, to shock the conscience and furnish satisfactory and decisive evidence of fraud, it will be sufficient ground for canceling a conveyance.'
oubt that the general rule is that a person induced by fraud to enter into a contract has one of four remedies. He may, first, upon discovery of the fraud rescind the contract absolutely and sue to recover the consideration parted with, in which case he must restore or offer to restore whatever he has received of value on the contract; or, second, he may bring an action in equity to rescind the contract, and in such case it is sufficient for him to restore or offer in his petition to restore everything of value which he has received under the contract; or, third, he may affirm the contract, retain that which he has received thereunder, and sue to recover the damages sustained by reason of his reliance upon the fraudulent representations; or, fourth, he may in an action against him upon the contract, where he has not actually paid the consideration, set up the damages sustained by reason of the fraud as a defense or by way of counterclaim. Crouch Son v. Huber, 87 Okla. 83, 209 P. 764; Morton v. Roberts, 88 Okla. 263, 213 P. 297; Byers v. Brisley, 81 Okla. 215, 198 P. 90; Jeter v. DeGraff, 93 Okla. 76, 219 P. 345. The general rule which requires the return of everything of value received by virtue of or under the fraudulent contract, or offer of return thereof in order to rescind, has some well-established exceptions.
Courts will not, by reason of the insufficiency of the consideration to support a contract, make a new contract for the parties or cancel contracts which have been inadvertently made, but if the consideration is so small as to appear to be unconscionable, the smallness of the consideration may be looked to as evidencing a fraud or undue influence practiced by the party benefiting by the contract. The rule has been thus stated in Morton v. Roberts, 88 Okla. 263, 213 P. 297: "Ordinarily mere inadequacy of consideration is not sufficient ground, in itself, to justify a court in canceling a deed, yet when the inadequacy is so gross as to amount to fraud, or in the absence of other circumstances, to shock the conscience and furnish satisfactory and decisive evidence of fraud, it will be sufficient ground for canceling a conveyance."
Or it could reverse the entire judgment and remand the cause for a new trial, which appears to have been done here. Allen v. Allen, 85 Okla. 240, 205 P. 504; Morton v. Roberts, 88 Okla. 263, 213 P. 297; Lumber Company v. Branch, 158 N.C. 252, 73 S.E. 164; Jarvis v. Frey (Cal.) 189 P. 795; Porter v. Sherman County Banking Co., 40 Neb. 274, 58 N.W. 721; Cowdery v. London San Francisco Bank, 139 Cal. 298, 73 P. 196; Purdy v. Chambers, 128 Okla. 118, 261 P. 216; section 780, C. O. S. 1921; 2 R. C. L. 270. As stated in the case of Roberts v. Coffin (Tex. Civ. App.) 53 S.W. 597, there has not been a decision come to our attention allowing a trial court to view a judgment of an appellate court as having done what it might or should have done, instead of what it actually decided or directed.