This is an action to set aside a deed. The plaintiff is relying upon the exercise of undue influence upon him by the defendants in procuring the execution of said instrument.
There is no evidence in this record that the plaintiff lacked sufficient mental capacity to execute a deed on 20 September, 1940, or that he was easily influenced by reason of his mental condition. The plaintiff did testify that he was persuaded by Lena, his daughter, and Walter, his son, to make the deed; that Lena came to see him often and begged him to convey his property to them and that Walter came occasionally, and both agreed to take care of him if he would convey his property to them.
The sum and substance, however, of plaintiff’s testimony amounts to this: In consideration of an agreement on the part of his son, Walter, and his daughter, Lena, to support him; which agreement is in writing and purports to have been signed by the parties, the plaintiff executed a fee simple deed, conveying all his real estate to said son and daughter. About one year thereafter, the plaintiff changed his mind and decided he wanted to recover his land, because, according to his version, he was not getting the support he had been promised. It will be noted that there is no evidence that the deed is not exactly like the plaintiff intended it to be at the time of its execution. Furthermore, plaintiff’s only objection to this transaction, according to his testimony, is that he is not receiving *821tbe support be bad been promised, wbicb was tbe consideration for transferring bis property.' But plaintiff admits tbat after tbe execution of tbe deed, and after bis wife left bim, bis daughter, Lena, offered to take bim in ber borne, but be refused to live witb ber. Sbe then offered to move in witb bim and take care of bim, be also rejected tbat offer. He likewise declined to live witb bis son, Walter.
It is contended by tbe plaintiff tbat tbe separate agreement for support was not signed by bim and tbat be knew nothing of its existence until after tbe institution of this action, and tbat this purported agreement in itself is evidence of fraud. We cannot so bold, since there is no conflict between tbe provisions for tbe support of tbe plaintiff as contained in tbe written instrument, and tbe oral testimony of tbe plaintiff as to bis agreement for support by these defendants at tbe time of tbe execution of tbe deed.
Plaintiff further urges tbat under tbe principles laid down in the case of McNeill v. McNeill, ante, 178, 25 S. E. (2d), 615, be is entitled to have tbe jury pass upon tbe question of fraud or undue influence; tbat tbe intimate relationship wbicb existed between tbe parties raises a presumption of fraud or undue influence. Tbe contention is untenable. Tbe relationship of tbe parties in tbe instant case is not similar to tbe relationship of tbe parties in tbe McNeill case, supra. Here we are dealing witb a parent and bis children, without any evidence of intimate or fiduciary relationship. There a fiduciary relationship was ’ involved. Tbe mere relation of parent and child does not raise a presumption of undue influence. In re Graven, 169 N. C., 561, 86 S. E., 587.
A careful consideration of all tbe evidence on this record, bearing on tbe question of fraud or undue influence, when considered in tbe light most favorable to tbe plaintiff, is insufficient to warrant tbe submission of an issue thereon to tbe jury. Myatt v. Myati, 149 N. C., 137, 62 S. E., 887; In re Craven, supra; Owens v. Rothrock, 198 N. C., 594, 152 S. E., 681.
Plaintiff’s remedy, if any, appears to be, not in equity, but in a court of law for breach of contract. Hinsdale v. Phillips, 199 N. C., 563, 155 S. E., 238.
Tbe judgment of tbe court below is
Affirmed.