Reversing.
This is an appeal from a judgment of the circuit court sustaining appellee's general demurrer to appellant's petition and dismissing the action. The facts *Page 245 stated in the petition are these: Appellant, Jerrymiah Stair, is eighty-four years of age. Appellee, Jerry Lee Stair Gilbert, is his nephew. Appellant owned a tract of land in Clark county containing twenty-seven acres. A deed from appellant and his wife to appellee, Jerry Lee Stair Gilbert, dated December 2, 1908, is of record in the county clerk's office, whereby the first parties conveyed the land to him "and immediately at the death of the said first parties or the death of the one surviving last, it is to be the property of the said Jerry Lee Stair Gilbert, the said first parties are to have the right, if they desire, to make sale of and deed the same to any other party and reinvest the proceeds of same for the benefit of said Jerry Lee Stair Gilbert." A deed is also of record in the county clerk's office, dated April 1, 1916, from Jerrymiah Stair to Jerry Lee Stair Gilbert conveying to the latter the life interest of the former in the tract of land. There was no consideration for either of the deeds. Nothing was in fact paid. The appellant has no knowledge of ever having signed or executed either of the deeds. When each of them was executed he did not know what he was doing and did not know the meaning and effect of same. It was not his intent or purpose at any time to convey the property to appellee.
While the petition is very inaptly drawn it does state the above facts and these facts being admitted by the demurrer, the demurrer must be overruled, for if plaintiff did not know what he was doing, and did not know the meaning and effect of either instrument, and it was not his intent or purpose at any time to convey the property to appellee, the deed is not binding on him and may be set aside. The allegation that he did not know what he was doing is equivalent to an allegation that he was out of his mind. The demurrer admits that the deeds were executed without any consideration.
It is alleged in the petition that at the time each of these deeds were made appellant "was under lawful restraint and legal disability and unable and absolutely incapable at said time of making a lawful conveyance of any kind whatsoever." But this is a mere allegation of a conclusion of law and adds nothing to the petition, for facts must be alleged, not conclusions of law. The rule is that to constitute mental incapacity invalidating a deed, the grantor must have been incapable of comprehending or understanding the subject of the contract, its *Page 246 natural and probable consequences. Williams v. Reese, 177 Ky. 679; Sikes v. Hurd, 195 Ky. 560.
It is also alleged in the petition that the appellee knew of appellant's incapacity and induced and persuaded him to execute both the conveyances, well knowing his incapacity, mental trouble and suffering and that appellant was induced and persuaded by the fraudulent acts and misrepresentations of the defendant to execute the deeds. But these allegations are entirely too vague to set aside the deed on the ground of fraud. The facts must be alleged. In order to have a deed set aside for fraudulent misrepresentations the representations must be set out and it must appear that the representations were untrue; that the party making them knew or should have known them to be untrue; that they were made to induce the other party to act; that they were believed and relied upon and that they were about material facts. Baker v. McDonald, 185 Ky. 470.
On the return of the case the plaintiff will be allowed to amend his petition if he desires to do so; for unless the defendant is informed of the misrepresentations relied on he will not know what charges he is to meet.
It is earnestly insisted that the demurrer was properly sustained to the petition so far as it sought to set aside the deed made in 1908, because the action was not brought within ten years after the deed was made. But the rule is well settled in Kentucky that limitation must be pleaded and cannot be relied on by demurrer. Davidson v. Ky. Coal Lands Co., 180 Ky. 121, and cases cited.
In so far as the deed is sought to be set aside on the ground of fraud the limitation is prescribed by section 2519, Kentucky Statutes. In so far as it is sought to be set aside on the ground of incapacity the limitation is prescribed by section 2522, Kentucky Statutes. But both of these sections are qualified by section 2525, which permits a person of unsound mind or under other disability to bring the action within the like number of years after the removal of such disability. A person may be of unsound mind when on account of any infirmity or weight of years he has become so imbecile as to render him incompetent to manage his estate, or to understand the subject of a contract, its nature and probable consequences and as long as such unsoundness exists the statute does not run against him. *Page 247
Although section 2519 provides that no such action shall be brought after ten years, it is settled that in such cases the defendant must plead limitation if he relies upon it and then the plaintiff must by his reply set up facts sufficient to avoid the running of the statute and if these facts are denied the burden is on him to prove them. Swinebroad v. Wood, 123 Ky. 664; Yeager v. Bank of Kentucky, 125 Ky. 177; Baker v. Begley,155 Ky. 234; Kirk v. Kirk, 167 Ky. 69. The objection is not raised by demurrer to the petition.
Whether the statute would run against appellant when he did not know of the deed or from what time it should run are questions not now before the court or decided.
Judgment reversed and cause remanded for further proceedings consistent herewith.