I concur with Mr. Justice Laughlin in the reversal of this judgment on the ground that there could be no cancellation of these agreements unless the fraud alleged in the complaint was proved, but I do not concur in his statement that the evidence was sufficient to justify a finding of fraud.
The agreements were executed to secure the indebtedness of the plaintiff’s sons to the defendant. I think there was sufficient consideration in the discount by the defendant of the note given by the plaintiff at the time these instruments were executed and the subsequent extension of the payment of the indebtedness of plaintiff’s sons to the defendants. The fraud to justify a cancellation of these agreements must be fraud of the defendant. The evidence is undisputed that no representations were made to the plaintiff by either the defendant- or Newman, the lawyer, who accompanied *470the plaintiff’s sons and was present when the instruments were executed. Plaintiff’s son requested her to sign these instruments; assured her that they were all right; and she signed them without examination and relying upon her son’s statements. We may assume that Newman was defendant’s attorney and that the defendant would have been responsible for any fraudulent misstatement that was made by Newman to the plaintiff or to her son by which plaintiff was induced to sign these instruments. The only statement that Newman made in relation to the instruments was made to the plaintiff’s son in the absence of the plaintiff, and that was as to his legal opinion of the effect of one of the instruments, Newman assuring the plaintiff’s son that the instrument was not a mortgage. It did on its face, however, give to the defendant a lien upon the plaintiff’s real property to the amount of the indebtedness, but there is no evidence to show that either the plaintiff or her son did not intend to give the defendant such a lien. It was undoubtedly an improvident act for the plaintiff to sign such an instrument, but I do not think there was evidence to justify a finding that the signing of the instruments was induced by the fraud of either the defendant or his attorney or that the court was justified in decreeing the cancellation of the instruments. Fraud must be proved. It cannot be presumed. Plaintiff’s sons were in financial difficulties and required additional assistance from the defendant. Plaintiff understood that she was procuring for her sons such assistance, and the mere fact that she did not know just the extent of the obligation which she assumed, or that she relied upon her son’s representation that the instruments were all right, would not justify a finding that the defendant or his representatives were guilty of fraud.
I concur, therefore, in the reversal of the judgment.
Scott, J"., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.