By the Court,
Dixon, C. J.We fully concur with the learned judge of the circuit court in his finding of facts in this case. The charge in the complaint that Poster was fraudulently induced to execute and deliver the deed in exchange for the contract and mortgage, when in a state of intoxication, and that his intoxication was encouraged and employed by Amos for that purpose, is established by the evidence for the respondent, and not rebutted by that for the appellants. That he was intoxicated seems hardly questionable. It was proved by his own evidence, and although his examination and the general tenor of his testimony show him to be imbecile, still when, as in this particular, he speaks clearly and positively to facts within his knowledge, we can see no reason for disbelieving him. His weakness is acknowledged, but so far as he has ability to state *113fa'cts, his truthfulness is not denied. But aside from Mm, Carrier, Downey and Burnham, with ample means of knowledge, all testify to the same fact. Opposed to them are Warren and D. Gr. Rogers. Warren, with less opportunity of judging than either of the others, contradicts them. His testimony, however, is not otherwise free from doubt. He says that Foster came to Milwaukee and wanted to negotiate with Amos for the contract and mortgage — a statement in which he is contradicted by every fact and circumstance in the case, and not supported even by Amos himself. Rogers does not reach the point of positive contradiction. His statements are not absolutely inconsistent with those of the witnesses for the respondent. He says that Foster, at the time of the acknowledgment, appeared stupid, and admits that he may have remarked, about the same, time that “ the old man appeared as if he was drunk or half drunk,” but qualifies both by saying that he always appeared so to him. This evidence cannot be permitted to outweigh the positive testimony on the other’side.
As to Amos having connived at and encouraged Foster’s intoxication, there is the .testimony of Foster himself, corroborated in part by that of Amos, and supported by the great leading feature of the transaction, that Amos, as he claims, obtained a conveyance of the farm in consideration of the transfer of a contract and mortgage which the proofs show to have been of but very little or no value, when the whole circumstances, aside from the statements of Amos himself and perhaps the witness Warren, clearly enough demonstrated that Foster intended to sell only for cash. He knew Foster’s habits — that he was weak and easily tempted. He invited him to Milwakee, and when there, and both before and pending the negotiation which was then set on foot, they visited saloons and drinking places, and treated and drank together, and while Foster was so intoxicated as to be incapable of business, the trade was consummated and the necessary papers executed and delivered. This he in part admits; he says they drank onee or twice; Foster says several times; the number he cannot recollect. As the result of this fellowship, it appears that the respondent parted *114with a valuable farm for a contract and mortgage worth nothing in market, when Poster, the agent, supposed he was to receive a fair price in cash. In reasoning from effect to , cause it is difficult to see how Amos is not to be held respon- j sible for Poster’s drunkenness and consequent incapacity J and how it was not a part of the means resorted to by him v for the purpose of accomplishing this end. ^
That Poster intended to sell for money only, and that Amos knew it, are not only shown by the testimony of Poster and the extraordinary circumstances under which the trade was closed, but confirmed by the appellants’ witness Paggert, who, though evidently introduced for the purpose of showing that Poster agreed to take the contract and mortgage, fails to do so, but says that when they were proposed, Poster said “ he would not trade, as he wanted the money.” This he states clearly and explicitly. He likewise confirms Poster’s statement as to the cash offer which he said he received for the farm. The residue of his testimony, composed as it is of fragments of the conversation caught as he was walking through the garden and elsewhere, and most of the time not within hearing of the parties, is of very little weight. To these may be added Amos’s admission and promise to Dunn to pay him the money, made without claim that the contract and mortgage were made and delivered in payment, as testified by Dunn and Poster; his request to Burnham to pass lightly over the important words of the assignment, and his subsequent transfer of the farm to Stimson for the purpose of delaying and defeating the equitable rights of the respondent.
The testimony of Graham was properly received, and being so, it is conclusive that the deed to Stimson was a mere shift, and void as against the respondent.
Upon the facts, therefore, we are of opinion that the deed was obtained by fraud and imposition, practiced in the manner set forth in the complaint, and that the respondent is entitled to the relief demanded. It was obtained by the artifices of Amos, without the payment of the true consideration for which the land was to be sold. Whether the contract and mortgage were good or bad is therefore immaterial *115in this view of the case; but as we have already said, they were proved bad, and Fence Amos’s anxiety to get rid of them.
It is said by the appellants’ counsel to be a fatal objection to this action, that the money paid in part consideration was not paid or tendered back before the action was brought, and that the contract and mortgage were not re-assigned before the respondent offered to return them. The authorities cited to sustain the objection are inapplicable to this case. They are cases where actions were brought to rescind contracts fairly obtained, on account of some subsequent breach or failure to comply with their conditions. This action was brought to set aside the contract because it was obtained by fraud, and therefore never was the contract or conveyance of the plaintiff. In such case we think it sufficient that the party perpetrating the fraud is left to the care and protection of a court of equity, and that it should be regarded as his fault that he did not seek the injured party and offer to restore that which had been lost through his own iniquity, rather than the fault of the other that he did not request him to do so, and offer to return that which came innocently into his hands. McCormick vs. Malin, 5 Blackf., 533.
It follows from these views, that the j udgment of the circuit court must be affirmed, with costs.