after stating tbe case: Tbe court having held tbat there was no evidence to sustain either cause of action, tbe one as to mental incapacity or tbe other as to undue influence, wbicb is another and milder name for fraud, we must apply tbe familiar rule in cases of nonsuit, and construe tbe evidence most favorably for tbe plaintiff, and every fact essential to tbe cause of action wbicb it tends to prove must be taken to be established, as tbe jury, if the case bad been submitted to them, might have found tbe facts to be as alleged by tbe plaintiff and contrary to tbe contention and proof of tbe defendant. Brittain v. Westhall, 135 N. C., 492; Morton v. Lumber Co., 152 N. C., 54; Trust Co. v. Bank, 166 N. C., 112; Christman v. Hilliard, 161 N. C., 4. And this rule applies in favor of tbe defendant where a verdict is substantially directed. Forsyth v. Oil Mill Co., 167 N. C., 179. Where tbe evidence is conflicting tbe case is one for tbe jury to settle tbe contradictions and find tbe facts. Alexander v. Statesville, 165 N. C., 527; Forsyth v. Oil Mill Co., supra. It was suggested tbat tbe court was unduly impressed by tbe plaintiff’s own testimony, wbicb was thought to indicate tbe possession by him of full mental capacity and an absence of undue influence; but if tbat be so it was not regular for tbe court to isolate any particular part of tbe evidence and decide tbe case upon it alone, but tbe whole of tbe evidence must be considered, as it is eminently tbe province of tbe jury, and not of tbe judge, to pass upon its weight and to determine its probative force, and, for this purpose, to make tbe selection between tbat wbicb is credible and tbat wbicb is not. Tbe defendant’s testimony is only considered in order to ascertain if any of it tends to prove tbe plaintiff’s case, and it is not at all permissible for tbe court to say on wbicb side tbe evidence preponderates, or to decide against one party or the other according to its own conviction of what is the truth. This is precisely what our statute forbids to be done. Guano Co. v. Mercantile Co., 168 N. C., 223.
With these rules kept steadily in view, it seems to be plain tbat there was error in tbe 'judgment below.
We have recently considered tbe law as to tbe mental capacity required for tbe valid execution of a deed, and tbe undue influence of *443fraud sufficient for the rescission or cancellation of a contract. Hodges v. Wilson, 165 N. C., 323; Sprinkle v. Wellborn, 140 N. C., 163; Cameron v. Power Co., 138 N. C., 365.
We take tbe law to be settled that the mere fact that a man is of weak understanding, or is below the average of mankind in intellectual capacity, is not of itself an adequate ground to defeat the enforcement of an executory contract, or to set aside an executed agreement or conveyance. But where mental weakness is accompanied by other inequitable incidents — such as undue influence, great ignorance and want of. advice, or inadequacy of consideration — equity will interfere and grant either affirmative or defensive relief. This is the rule that is stated in Fetter on Equity, p. 143, and Eaton on Equity, p. 316. Lord Hard-wiclse said in Earl of Chesterfield v. Janssen, 2 Vesey, Sr., 125: “A third kind of fraud is that which may be presumed from the circumstances and conditions of the parties contracting; and this goes further than the rule of law, which is that it (fraud) must be proved, and not presumed; but it is wisely established in this Court to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do is equally against conscience as to take advantage of his ignorance.”
Bispham on Equity (5 Ed.), sec. 230, refers to the subject in this way: “Whatever be the cause of the mental weakness — whether it arises from permanent injury to the mind, or temporary illness, or excessive old age — it will be enough to make the court scrutinize the contract with a jealous eye; and any unfairness or overreaching will be promptly redressed. As has been said by the Supreme Court of the United States, ‘Wherever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to an absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party or his representatives or heirs, interfere and set the conveyance aside.’ ‘The result of the decisions,’ says an English chancery judge, in a modern case, ‘is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a court of equity will set the transaction aside.’ A mere latent suspicion of unfairness, however, will not be enough. On the other hand, it need scarcely be remarked that the mere circumstance of old age or physical feebleness will not render a transaction fraudulent, if, in point of fact, the party is intelligent and capable.” See Allore v. Jewell, 94 U. S., 511; Griffith v. Godey, 113 U. S., 95, and Bispham on Equity (6 Ed.), sec. 230 (p. 333), note 4, where the cases are collected. The mental capacity required for the valid execution of a deed is the ability to understand the nature of the act in which the party is engaged and its *444scope and effect, or its nature and consequences — not that be should be able to act wisely or discreetly, nor to drive a good bargain, but that he should be in such possession of his faculties as to enable him to know at least what he is doing and to contract understandingly. There is no particular formula to be used in such cases, as said by the Court in Morris v. Osborne, 104 N. C., 609, but the law in this respect should be explained to the jury with reference to the special and peculiar facts of the case being tried, and under the guidance of such general principles .as'have been settled and declared by the courts.
A want of adequate mental capacity of itself vitiates the deed, while mere mental weakness or infirmity will not do so, if sufficient intelligence remains to understand the nature, scope, and effect of the act being performed. But while this is true, weakness of mind, whether natural or induced by the excessive Use of drugs or any other cause, when accompanied by such circumstances as tend to show that advantage was taken of it by the party who procured the deed, or when it appears that there is not only weakness of mind, but inadequacy of consideration, especially when it is gross, and the situation of the parties is so unequal, by reason of the weakness of the one and the mental superiority of the other, or for other reason, the jury may infer fraud, or undue influence, which in law is the same thing. Mere weakness of mind or inadequacy of price, unless the latter be such as amounts to apparent fraud, will not be sufficient to authorize the cancellation of a deed, but either or both of them may be considered by the jury in ascertaining whether fraud has been practiced in obtaining the instrument. This fraud is not required to be directly established by proof, but may be inferred from all the circumstances of the case, such as weakness of mind and body, inadequacy of price, and inequality in the positions of the parties. This kind of fraud, as a fact, is not presumed, but must be established by the party who alleges it by the clear preponderance of the evidence to the satisfaction of the jury, but strong, cogent, and convincing proof of it is not required, as contended by defendant’s counsel in this case. Harding v. Long, 103 N. C., 1; Hodges v. Wilson, supra; Culbreth v. Hall, 159 N. C., 588, and Fraley v. Fraley, 150 N. C., 501, where the question is fully considered by Justice IJolce, with ample reference to the authorities. "Where it is proposed to change the substance of the contract by altering its terms, under the equity for correction or reformation and upon the ground of mistake or fraud, or by engrafting upon it a trust by parol, the quantum of proof is different, and the evidence must be of a more cogent and convincing nature than in the other case, because of the strong presumption that parties in the written memorial of their contract have expressed themselves as they intended to do, and more conclusive proof than is ordinarily required must be forthcoming in such cases. The *445law, it is true, does presume, in tbe first instance and without proof from either side, that the execution of a deed has not been fraudulently procured, and for this reason places the burden of proof on the party alleging fraud, but this presumption is weaker than the one as to the correctness of the paper, when it is proposed to alter its terms, or to add something to it, which was not written into it by the parties, or to change or modify its terms in any essential respect. Lehew v. Hewett, 138 N. C., 6.
When we apply these well settled principles to the facts of this case, the error of the court in withdrawing the case from the jury and dismissing the action upon its own view of the facts becomes apparent.
The case is not, in principle, unlike Sprinkle v. Wellborn, supra, where it was substantially said: So weak was she as to be easily and completely subjected to the power and influence, if not sheer dictation, of the defendant, and her condition must have been known to him, if the testimony is credible. If any mental operation of importance was required in the transaction, it was practically all on his side. It seems that he could, at his will and pleasure, mould her resolutions, if she had any, to suit his own designs, so like was she to clay in the hands of the potter. It is needless to prolong the decision. To be sure, there was evidence in conflict with that offered by the plaintiff, but we are considering the version of the facts as presented by the plaintiff’s proof, which may be accepted by the jury to the utter, rejection of the defendants, and we are not called upon to go farther than to hold that there is some evidence in support of the plaintiff’s allegations. We need not refer any more to Sprinkle v. Wellborn, except to remark that it bears a strong resemblance to this case in some particulars, and that there is one fact which is shown by the defendant’s declarations in this case which did not appear in that one, viz., the knowledge of the defendants that plaintiff was weak-minded and unable to manage his own affairs, for they stated to one, at least, of the witnesses, that Ageron Charles Lamb was not competent to take care of the money they paid, and for that reason they had agreed to pay it in monthly installments of $15. It must not be forgotten that there is proof in the case that the amount paid was only about one-eighth of the value of plaintiff’s interest in the land, and only one-half, if we adopt the lowest estimate of one of his witnesses. There was, therefore, some evidence that the plaintiff was an imbecile and, whether from natural weakness or the excessive use of morphine, he was deprived of the mental capacity the law regards as necessary to the execution of a' deed. But whether or not he had mind enough to act for himself in the transaction, there was evidence of his mental weakness, of great inadequacy of consideration, and of marked inequality between two men of pre*446sumably normal minds and intellectual grasp on the one side, and this weakling on the other, with some other circumstances of more or less importance, showing that a fraudulent advantage was taken of him in securing his deeds.
Whether there is any difference, in moral quality, between the act of obtaining a deed for land from one known to be totally bereft of reason and mental capacity and that of procuring one from a person merely of weak understanding, but of such feeble mind as to be unable to guard himself against imposition or to resist importunity and to take care of his interests, it does not lie within our province to decide, but, in law, and in so far as the validity of such a transaction may be involved, where there are elements indicative of fraud and dishonesty, we know that there is not and should not be any difference, if the jury, who are the triers of the facts, find that there was actual fraud, and in either case a court of equity will rescind the contract and cancel the deed or require the vendee to surrender what he has unfairly and unjustly received, with proper deduction for any sums paid out by him, if the specific remedy of rescission or cancellation cannot be equitably administered.
We have proceeded upon the assumption that the evidence which tends to establish the plaintiff’s contention is true, and that the jury would have so decided if the case had been submitted to them, which is the proper way to consider it. The defendant, at the next trial, may be able to rebut the plaintiff’s evidence and to satisfy the jury that the transaction was perfectly fair and honest, and that no undue advantage was taken of the plaintiff, but that he had sufficient mental capacity to understand the nature of the transaction, its scope and effect, and that while he may have acted with poor judgment and discretion, and made a sorry bargain, it was not because of any natural insufficiency or impairment of his mental faculties caused by his habits or the low state of his health. We express no opinion as to the weight of the evidence, but simply hold that the nonsuit was improper. It will be set aside and a new trial granted.
New trial.