Effect

The rules respecting the right to rescind contracts entered into under undue influence follow, so far as equity is concerned, the rules which apply to fraud,68 but with one noticeable qualification. In the case of fraud, so soon as the fraud is discovered, the parties are placed on equal terms, and an affirmation of the contract binds the party who was originally defrauded; but in the case of undue influence it is not a particular statement, but a combination of circumstances, which constitutes the vitiating element in the contract, and unless it is clear that the will of the injured party is relieved from the dominant influence under which it has acted, or that the imperfect knowledge with which he entered into the contract is supplemented by the fullest assistance and information, an affirmation will not be allowed to bind him.69 And where it appears that the undue influence existed up to the death of the party, the contract may be avoided by his heirs.70

As in the case of duress, the undue influence must have been exercised by or with the cognizance of the other party.71

66 Benyon v. Cook, 10 Ch. 389; Hough's Adm'rs v. Hunt, 2 Ohio, 495, 15 Am. Dec. 569; Boynton v. Hubbard, 7 Mass. 112; Parsons v. Ely, 45 I11. 232: Butler v. Duncan, 47 Mich. 94, 10 N. W. 123, 41 Am. Rep. 711; Kelley v. Caplice, 23 Kan. 474, 33 Am. Rep. 179; Jenkins v. Pye, 12 Pet. 241, 9 L. Ed. 1070; Bacon v. Bonham, 33 N. J. Eq. 614, 617; Mastin v. Marlow, 65 N. C. 695. See "Contracts" Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1169.

67 Peugh v. Davis, 96 U. S. 337, 24 L. Ed. 775; Oliver v. Cunningham (C. C.) 7 Fed. 689; Dorrill v. Eaton, 35 Mich. 302; Jones, Mtg. (5th Ed.) § 711. Bee "Mortgages," Dec. Dig. (Key-No.) § 294; Cent. Dig. §§ 806-814,.

68 Burt v. Quisenberry, 132 I11. 385, 24 N. E. 622; City Nat. Bank of Dayton v. Kusworm, 91 Wis. 166, 64 N. W. 843; ante, p. 292. See "Contracts," Dec. Dig. (Key-No.) §§ 97, 98; Cent. Dig. §§ 442-447.

69 Anson, Cont. (4th Ed.) 169; Moxon v. Payne, 8 Ch. 881. See "Contracts," Dig. (Key-No.) §§ 97, 98; Cent. Dig. §§ 1,1,2-1,1,7.

70 Foote v. De Poy, 126 Iowa, 366, 102 N. W. 112, 68 L. R. A. 302, 106 Am. St. Rep. 365. See "Contracts," Dec. Dig. (Key-No.) §§ 96-98; Cent. Dig. §§ 441-448.

71 Dent v. Long, 90 Ala. 172, 7 South. 640. Contra, where the other party has not paid a valuable consideration, Graham v. Burch, 44 Minn. 33, 46 N. W. 143. See "Contracts," Dec. Dig. (Key-No.) i 96; Cent. Dig. §§ 441, 1169.