This suit was instituted by appellees, the heirs of John C. Peek and his wife, Amanda J. Peek, - both dead, to recover from appellants the land in controversy, which had been the homestead of John O. Peek and his wife during their lifetime. She died on the 3d day of January, 1892, and he died April 25, 1917.
The suit was to cancel a deed made by J. C. Peek to C. W. Wisdom, dated the 28th day of February, 1916, substantially in the following terms:
“State of Texas, County of Bexar — ss.:
“Know all men by these presents: That I, J. C. Peek, of the state and county aforesaid, for and in consideration of proper support and maintenance during the remainder of my life by C. W. Wisdom, also of said county and state, have granted, bargained, sold, and conveyed, and do, by these presents, grant, bargain, sell and convey unto the said O. W. Wisdom, all of my right, title and interest (save and except my right to use and occupy the same during the remainder of my life, which is hereby reserved), in and to the following described properties, to wit: * * *
“It is expressly understood that the heirs or assigns of the grantee herein shall be entitled to all the title and rights herein vested in and conferred upon said grantee upon the performance by such heirs or assigns of the agreement constituting the consideration for the execution of this deed.”
The land conveyed consisted of 140 acres and improvements, situated in Wilson and Bexar counties.
The ground for recovery is based upon the alleged fraud and undue influence committed by appellant in securing from J. C. Peek the conveyance, and on account of the further alleged ground that his advanced age and his weakened physical and mental infirmity, rendered him incapable of making a valid contract and deed of conveyance; and that the bargain itself that appellant secured from Peek was fraudulent and unconscionable, in that the property he secured thereby was reasonably worth $7,000, and when the contract was made and duly executed it was apparent to the said Wisdom, from said Peek’s advanced age and his apparent - physical and mental infirmity, that he could not live long, nor make a valid contract of sale of said property.
The defense was general denial and plea of limitation, claiming under the five-year statute.
The case was tried by a jury, submitted only on two special issues: The first, as to whether John G. Peek possessed sufficient mental capacity to comprehend the nature and effect of his act; and, second, Was the deed procured by the exercise of any undue influence on the part of the defendant Wisdom? The answer of the jury to the first question was, “He did not,” and to the second the answer was, “It was,” and the court thereupon entered its judgment in favor of appellees for the land sued for, without rents.
The first, second, and third assignments insist, because the appellees did not offer- *212and tender to do equity, and restore, or offer to restore, the consideration or the value thereof which John O. Peek received from the defendant Ghas. Wisdom as consideration for the deed sought to be canceled, they were not entitled to a judgment canceling the deed and rescinding in toto the entire transaction.
His proposition is that one who seeks to rescind a contract or conveyance must return all the benefits; where it is entire, it must be rescinded in toto or not at all.
The suit is to cancel a deed, held to be a nullity because secured from J. O. Peek, deceased, fraudulently and by undue influence; and, further, because he was totally incapacitated mentally and physically to make such a contract or execute such a deed.
As a basis for this suit, it was unnecessary to offer or tender the return of any consideration, none having been paid in money or property at its making and execution. The only consideration was that expressed in the deed, to care for, support, and maintain J. G. Peek during his lifetime. The appellant sought no affirmative relief in his pleading for improvements, support, or maintenance. His defense was a denial and a claim under the statute of limitations of five years. The appellant, by his acts, waived the limitation plea and stood on the general denial, and submitted no issue to the jury at all. There were no equitable claims or demands presented to be submitted by the pleadings or special charges requested of the court to be passed upon by the jury. Moore v. Giesecke, 76 Tex. 551, 13 S. W. 290.
There was no recovery allowed for rents; presumably because appellee alleged the rental value of the property for one year and two months was adequate compensation for the support and maintenance of said Peek during the time, and the court allowed no judgment for rent, because he said:
“It not appearing to the court that the value of the rents on said premises is in excess of the value of the board and maintenance of the deceased.”
Appellant asked no issues to be submitted to the jury for its finding in reference to values, nor for any affirmative relief whatsoever, and cannot complain of the relief given him on appellees’ pleading, or that no other was given him if he were so entitled. Patrick v. Roach, 21 Tex. 255.
The evidence showed prior to the conveyance appellant consulted with his lawyer, a reputable member of this bar, who requested that he might see said Peek before he would advise the conveyance, and, after satisfying himself that J. C. Peek, deceased, had the mental capacity sufficient to contract, this deed was then duly executed, and not before; but that issue was sharply controverted. There was much testimony introduced by both sides as to the mental capacity of said Peek and as to the influence supposed to have been exercised by appellant to secure the deed. As it was all before the jury without objection and sufficient to sustain their finding that he did not have such capacity, it is not necessary to set it out further in detail, but sufficient to say there was ample evidence to show that he was in a condition of senile dementia at the time he made the contract, and unable to comprehend sufficiently the consequences of his act. Black on Rescission and Cancellation, vol. 1, §§ 257 to 263, inclusive.
We do not think there was any error of the court in submitting the first issue as to whether J. G. Peek had the mental capacity to comprehend the nature and effect of the act, or to submit the other issue of undue influence at the same time. We do not believe that the jury were misled thereby, or that the finding is contradictory. At any rate, there was ample testimony to support their finding, in response to the first issue, that he did not have the mental power to comprehend the nature of his act.
We can see no harm done in this case in submitting the second question. The court may have thought, in view of the appellant’s testimony, the jury could find he had mental capacity enough to know what he was doing, yet may have been unduly influenced too.
Therefore, when the jury answered he did not have the mental capacity, the answer to -the second question was rendered immaterial and harmless.
While true, as said in Indiana Co-op. Co. v. Gray, 184 S. W. 242, it would be error for trial court to enter a judgment on contradictory findings that could not be reconciled and thereby harmful, we cannot see such a contradictory finding here that has that effect. That and the case of Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138, seem to be relied upon to establish appellants’ proposition. In the Scott Case the court is discussing a will contest case, and is not in point. It is true, whether to make a valid will or valid conveyance, there must be sufficient mental power to know and comprehend the nature of the act or transaction. That power implies some mental capacity, and when the ground to set aside a will, or deed, is predicated solely upon undue influence, it presupposes the existence of a strength of mind capable to act for itself, if let alone. In this case the right to cancel is based upon either ground, and the testimony is conflicting upon both. This case presents one in which the mind is incapable to contract, as well as to also suggest there was undue influence exercised even though it was upon an incapable mind. The result is the same.
It may be the court, in submitting the first issue, should have instructed the jury not to answer the second, if the first was answered in the affirmative — as wholly unnecessary. *213So, in this case, the finding of the first issue in the affirmative rendered a finding in the second harmless and unnecessary, but not error. If he did not have the mental capacity to make the contract, or, in other words, to understand the “nature and effect of such act,1’ we need go no further with the discussion of undue influence with reference to this case, but lay that issue out of sight. In the ease of Gibson v. Fifer, 21 Tex. 264, the suit was predicated both on mental weakness and undue influence, and the deed was set aside. See, also, Black, supra, §§ 262, 263. These eases are authority for the consideration of both issues.
There were no objections made, or bills of exception taken and filed to the court’s charge, or any • special issue requested by appellant for submission of any defense whatever. We have examined and considered separately each and every one of the assignments as they were separately presented, and find no reversible error assigned; and they are each overruled, and the judgment of the court is affirmed.