It is insisted by appellants that the evidence was insufficient to warrant a cancellation of the deed, in that it discloses that W.J. Bugg, the grantor, left the home of appellants without fault on their part and put it out of their power to perform the contract, and cites Bowles' Adm'r v. Harvey, 189 Ky. 598, 225 S.W. 367; Elswick v. Elswick, 220 Ky. 723, 295 S.W. 1070. And they further invoke the rule that the power reposed in courts of equity to set aside deed solemnly entered into between the parties is an extraordinary one and should not be lightly exercised. Citing Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Lacey v. Layne, 190 Ky. 667, 228 S.W. 1; Beattie v. Friddle, 229 Ky. 361, 17 S.W.2d 246; Sutton v. Cornwell, 267 Ky. 346, 102 S.W.2d 25. The question here to be determined is whether or not the facts of this case bring it within the category of the cases supra and to determine that question a review of the evidence becomes necessary.
Risner v. Risner, 261 Ky. 359, 87 S.W.2d 970. George Fortney bore a confidential relationship to the decedent as her nephew, and where such confidential relation exists and a conveyance so beneficial to the grantee is made, the burden is upon the one thus benefited to show that the grantor acted freely and voluntarily and to establish by clear and convincing evidence that the transaction was fair and equitable. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Briscoe v. Briscoe, 225 Ky. 804, 10 S.W.2d 294. In view of the method and circumstances under which the deed was prepared, we are of the opinion that the judgment of the trial court is correct.
The burden of proving the incapacity of a grantor or the undue influence of the grantee rests upon the party relying thereon, although the burden of going forward with the proof may shift upon evidence of the existence of a confidential relation between the parties, such as where the grantee is custodian and nurse of the grantor. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Layne v. Layne, 277 Ky. 295, 126 S.W.2d 416. We need not here decide the point of confidential relationship in this regard, for whether it was or not on the plaintiffs, we are of the opinion that their proof is ample to sustain the judgment.
As a general rule it will, and should be presumed that one conveying property has sufficient mental capacity to do so, the burden of proving otherwise being upon those who question it. See Bevins et al. v. Lowe et al., 159 Ky. 439, 167 S.W. 422; Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Tartar v. Eaton et al., 282 Ky. 219, 138 S.W.2d 342. As an exception to the rule, appellees rely upon the principle that where the grantee has custody of the grantor, or a confidential relationship exists between them and the grantee is the stronger character, then the latter has the burden of showing the transaction was fair. See McDowell v. Edwards' Administrator, 156 Ky. 475, 161 S.W. 534.
The sum and substance of his contentions seem to be that appellees had the burden of proof and that they failed to sustain it. It has been generally recognized by this Court that where a close relationship exists between an infirm parent and a child having his or her custody, such child has the burden of proving that a conveyance beneficial to him: (1) was made at a time when the parent had sufficient mental capacity, (2) was not the result of undue influence, and (3) was fair and equitable. Gregg v. Hedges, Guardian et al., 227 Ky. 268, 12 S.W.2d 854; Strain et al. v. Strain et al., 237 Ky. 270, 35 S.W.2d 306; Moore's Adm'r v. Edwards, 248 Ky. 517, 58 S.W.2d 915; Petrey's Adm'r et al. v. Petrey, 262 Ky. 222, 90 S.W.2d 4. Accepting the above general rule as applicable to this case, we are of the opinion that appellees fully sustained the burden of proof. In reaching this conclusion we have considered other principles just as well recognized.
It must be kept in mind that this is an action to set aside a deed, and the rule is that the power reposed in courts of equity to set aside deeds is an extraordinary one and should not be lightly exercised. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4, and other cases. After examining all of the testimony in the record we have come to the conclusion that the ruling of the chancellor is supported by ample evidence and the judgment is accordingly affirmed.
Lacy v. Layne, 190 Ky. 667, 228 S.W. 1; Reid v. Wilder, 204 Ky. 395, 264 S.W. 849; Fields v. Cornett, 254 Ky. 35, 70 S.W.2d 954; Schimmelpfennig v Jungkind, 273 Ky. 182, 115 S.W.2d 895; Mortgage Union of Pa. v. Wilson, 273 Ky. 544, 117 S.W.2d 177; Snyder v. Rhinehart, 274 Ky. 274, 118 S.W.2d 543. The power of a court of equity to set aside a deed is extraordinary and should not be lightly exercised. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Johnson v. Johnson, 292 Ky. 175, 166 S.W.2d 285. A court will not cancel a contract, we have heretofore said, without the showing of a substantial reason. Norton v. Norton, 219 Ky. 612, 294 S.W. 191.
One of the cardinal principles to be kept in mind is that the cancellation of an executed deed is the exertion of the most extraordinary power of a court of equity, which ought not to be exercised, except in a clear case and on strong and convincing evidence. Schimmelpfennig et al. v. Jungkind, 273 Ky. 182, 115 S.W.2d 895; Lossie v. Central Trust Co. of Owensboro, 219 Ky. 1, 292 S.W. 338; Fields v. Cornett, 254 Ky. 35, 70 S.W.2d 954; Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4. As said in the Jungkind case [ 273 Ky. 182, 115 S.W.2d 898]: "If the evidence merely raises a suspicion of fraud, question of undue influence, or uncertainty of mental capacity, it is not sufficient to set aside a deed or other instrument."
A person possessed of sufficient mental capacity to understand the nature and consequences of his act, may, of his own free will, give, or, for any lawful consideration he sees fit to accept, sell his property to whomsoever he chooses. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4, 5: Saylor et al. v. Saylor et al., 282 Ky. 216, 138 S.W.2d 316. In our opinion the appellees failed to establish any of the elements necessary to entitle them to the relief sought.
See Jones v. Stamps, 194 Ky. 377, 238 S.W. 762; Belcher v. Belcher, 202 Ky. 104, 259 S.W. 54; Risner v. Risner, 261 Ky. 359, 87 S.W.2d 970. Ordinarily one alleging fraud, undue influence, etc., has the burden of establishing same but when in instances of this character, where the relation of father and son exists and the former is old and infirm and because of mental and physical infirmities is in the custody and practically under the control of the latter, while the latter is young, alert, healthy and vigorous, the burden shifts to him to show that the grantor or donor had mental capacity sufficient to know that he was making a conveyance or gift of his property and to appreciate the consequences and effect of his acts. Petrey's Adm'r v. Petrey, 262 Ky. 222, 90 S.W.2d 4; Masters v. Comley, 244 Ky. 646, 51 S.W.2d 939; Strain v. Strain, 237 Ky. 270, 35 S.W.2d 306. We unhesitatingly conclude that appellee signally failed to meet that burden.