The bill in this cause was filed to have a deed executed by complainant, on the 18th day of July, 1898, to her husband, who was then living, annulled and cancelled. The respondents are the executors of the last will and testament of the deceased husband and the devisees under that instrument to the land attempted to be conveyed by the deed attacked. The ground of attack is undue influence in the procurement of the execution of the deed. The bill avers, and the evidence sustains the averment, that complainant and the grantee in the deed were husband and wife at the date of its execution and had occupied that relation for many years. It is also shown by the bill and the evidence that the husband had managed the financial interests of the complainant and had been her agent for many years and stood in that relation at the date of the execution of the deed. The deed purports to convey a tract of land comprising four hundred and thirty-two and 70-100 acres upon a recited consideration of one dollar.
On this state of facts, which are practically without dispute, it cannot be seriously doubted that- the r°lation existing between the complainant and her husband must he classed as confidential, and that the principles *503of law governing transactions between persons standing in that relation must be applied in determining the respective rights of the parties to this cause.
In Holt v. Agnew, 67 Ala. 367, speaking of a transaction involving the relation of husband and wife, the court said : “The capacity, the right to dispose of property at will and pleasure, is an incident of its ownership, which the law recognizes, and neither courts of law, nor of equity, can assume to control it, or to annul dispositions, because they may be esteemed injudicious, unwise, or improvident., or because they may not be such as a prudent man would make, or a just, generous, and honorable man would consent to receive. Consent, free and voluntary, is, however, an essential element of every contract and of every disposition of property. The contract, or the disposition, whatever may be its form, or character, generally, of itself, imports consent, and is sufficient evidence of it. There are relations ini life, in which influence is acquired by the one party, and confidence reposed by the other. — relations of which we usually speak as confidential — that open the way and afford opportunity for impositions, or undue influence, and yet, rather close the door to, and render difficult, the detection of its exercise. Such are the known, relations of trustee and cestui que trust, guardian and ward, attorney and client, principal and agent, husband and wife, but the number or character of the relations are not defined by law; ‘all the variety of relations in which dominion may be exercised by one person over another,’ fall within the general term confidential, relations. When, in such relation, the party subject to imposition, to undue influence', enters into a contract with, or makes a disposition of property to the other, from Avhich detriment is sustained by the one, and benefit derived by the other, upon principles of public policy, there is no presumption of consent; the act or contract does not, itself import it. The law casts the burden of proving the transaction fair and just, and the free consent, of him who sustains the detriment, and is subiect to the influence, upon the partv who takes the benefit, and in whom trust was reposed. * * * In *504all these cases, it is a very material and. important circumstance, which may relieve the transaction of much of the suspicion attaching to it, and tend, to' show the spontaneity of the cestui que trust, if he had full opportunity to obtain, and in fact did obtain competent and independent advice in reference to the transaction from counsel, or from disinterestéd friends, -who were bound to him, and not subject to the influence of the trustee.”
In Malone v. Kelly, 54 Ala. 538, it is said: “Any contract or agreement into which a party is lured by fraud, or into which he is drawn by surprise or mistake, super-induced by the party with whom he contracts, or which is extorted by the undue influence of the party claiming the benefit of it, is vicious and Avill be annulled. When no fiduciary relation exists between the parties, and they are of legal capacity, however improvident or disadvantageous the contract may appear, though marked by folly or indiscretion, it must stand until the party seeking to escape its obligation clearly proves that it was the result of fraud, mistake or surprise, or undue influence practiced upon him. * * * If, however, either of the known legal reflations of guardian and ward, trustee and cestui que trust, attorney and client, or a.ny other relation, in which confidence is reposed and accepted, or influence acquired, exists between the parties, on him to whom the confidence is extended and who has acquired the influence, if he claims the benefit of the contract, the law, on principle of public policy, casts the duty of proving its fairness, and that it is untainted by a violation of the confidence reposed, or an undue exercise of the influence of the relation. * * * In short, the rule, rightly considered, is, that the person standing in such relation, must, before he can take a gift, or even enter into a transaction, place himself exactly in the same position as a stranger would have been in, so that he may gain no other advantage whatever from his relation to the other party, beyond what may be the natural a.nd unavoidable consequence arising out. of the relation. Again, in a word, standing in the relation in which he *505stands to the other party, the proof lies upon him (whereas, in the case of a stranger it would lie on those who opposed him), to show that he has placed himself in the position of a stranger, that he has cut off, as it were, the connection which bound him to the party giving or contracting, and that nothing has happened which might not have happened had no such connection subsisted.”
In Noble v. Moses, 81 Ala. 540, in which are reviewed many authorities on the question, the court quotes approvingly the language employed by Sir J. G. Turner, Lord Justice, in Rhodes v. Bate, L. R. 1 Ch. Ap. Cas. 252: “T take it to be a well established principle of the •court, that persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred on them, unless they can show to the satisfaction of the court that the persons by whom the benefits had been conferred had competent, and independent advice in conferring them.” “Such has been,” adds this court, “the almost unbroken current of decisions on each side of the Atlantic, from the very dawn of well defined English Equity Jurisprudence.1”
In Waddell v. Lanier, 62 Ala. 349, it is said: “In all the variety of the relations of life, in which confidence is reposed and accepted, and dominion may be exercised by o-iG person over another, the court will interfere and relieve against contracts or conveyances, when they would abstain from granting relief, if no particular relation existed between the parties, in which trust and confidence was reposed and accented, and there was not an opportunity for an abuse of the confidence and the exercise of undue influence. Though in this class of cases there are often marks and traces of direct and positive fraud, of artifice, imposition, oveiTeaehing and unconscionable advantage, the principle on which the court proceeds, in granting relief, does not depend on the existence of such facts. Belief is granted, not because there is actual fraud, but on the principle of public policy, to prevent fraud, and to remove all temptation for *506its commission. * * * A principle applying in all this class of cases is, that on the person claiming under the contract, or gift, rests the burden of proving satisfactorily that it is just, fair and equitable in every respect, and not on the party seeking to- avoid it, to establish that it is fraudulent.” See also McQueen v. Wilson, 131 Ala. 606; 31 So. Rep. 94; Ferguson v. Lowery, 54 Ala. 510; Johnson v. Johnson, 5 Ala. 90.
With the foregoing statement of the principles, to the test of which the validity of the conveyance assailed must be subjected, we will inquire if it is shown by the respondents, that it is just, fair and equitable — that it was executed by complainant of hex” own volition, free from the influence of her husband and agent. We think clearly not. It is nowhere shown that the confidential relation was ever severed for a time by the interposition of competent and independent advice. On the contrary, the deed was prepax’ed by the husband or at his'instance and request, and was executed by complainant at his instance and in his presence. Furthermore, there can be but little doubt that she was induced to execute it by him. The evidence tended to show strongly that she only yielded her consent to the execution of it after much pressure had been brought to bear upon her by her husband. We are not unmindful that the chancellor excluded much of this testimony and that its incompetency is insisted upon here. In doing so, however, the chancellor was in error. The witness testifying to these facts, although related to the complainant and will inherit her estate should she die intestate, are not incompetent to testify to toe declarations of the deceased husband. They have m> pecxxniary interest in the result of this suit and are not parties. “Nemo est Meres mven-tis.”
So then, instead of the respondents sustaining toe burden of showing that the complainant’s consent to execute the deed was not the result of influence growing out of the confidential relations existing between her and her husband, that it was free and voluntary, and inde*507pendent of the relation, the evidence affirmatively shows the contrary. Furthermore, it might be shown, if necessary, that the evidence fails to satisfactorily establish, as contended for by the respondents, that this deed was executed in consideration of a conveyance by her husband to her of certain property in 1890, more than eight years previous. Prima facie the consideration recited in it of one dollar was the true one. Of course, it is open to explanation, and parol evidence is competent to show that the real consideration was an exchange of property. — Eckles v. Carter, 26 Ala. 563; Hair v. Little, 28 Ala. 236. When, however, a consideration different from the one expressed in the deed is attempted to be shown, the burden of proof is upon the party asserting it. But conceding that the respondents have shown that the real consideration of the deed sought! to be annulled was as they contend, they have not shown, and the burj den is upon them to do so, that the exchange was just, fair and equitable. There is no evidence in the record as to the value of the land, in 1890, attempted to be conveyed by the deed assailed by the bill. It is true there is some evidence of its value in 1901. But this is not evidence of what it vas worth in 1890, Avhen it is contended, that the agreement for the exchange was entered into.
Our conclusion, therefore, is that the complainant is entitled to the relief she asks for. To this end, a decree will be here entered reversing the decree below and ordering an annulment and cancellation of the deed, with directions to the register to hold a reference, .take and state an account of the rents collected by the respondent Nelson, as executor, from the lands described in the bill, and report to the next term of the chancery court.
Reversed and rendered.