(after stating the facts). On the morning of February 21st, when the parties hereto met, neither owed any duty to the other with regard to redemption from the Fritz mortgage. If neither redeemed plaintiff would lose about $8,000 he had invested in the 116% acres and defendant David R. Miller, assuming that he was still the owner of the 40 acres, would lose about $5,000. Plaintiff was financially able to redeem. We believe the record discloses that defendant Miller was not. The parties up to that moment had been dealing at arm’s length and in the transactions of that morning still continued to do so. If the deed from David R. Miller to his stepson, defendant Rogers, and the assignment from David R. Miller to his brother, John H. Miller, were executed as of the date they severally bear (and there is nothing in the record casting doubt on the authenticity of said date), it would seem to have been the manifest *97duty of defendant David R. Miller to have acquainted plaintiff Klein with the condition of the title. This he says he did and his assertion in this regard is substantiated by the testimony of his wife and that of his wife’s niece. We have no difficulty, however, in reaching the conclusion that in so testifying defendant David R. Miller and his witnesses were, to put it charitably, mistaken. It is inconceivable that plaintiff, acting in the presence of and under the advice of his attorney, would have accepted a quitclaim deed of the 40 acres with the knowledge that defendant Miller had already conveyed title thereto to defendant Rogers, and in reliance thereon have paid out $7,300, the amount required for the redemption from the Fritz foreclosure. We believe as did the learned circuit judge that defendant Miller carefully concealed from plaintiff the fact that he had deeded to Rogers and that in executing and delivering to plaintiff a quitclaim deed of the premises he did so with the purpose of inducing plaintiff to believe that he, plaintiff, would acquire title to the 40 acres through said deed if he made the redemption. This was an act of fraud, the fruits of which defendant‘David R. Miller should not be permitted to enjoy. The learned circuit judge found that the deed to Rogers and the assignment of the mortgage to John H. Miller were both without consideration. We have read this record with care and while defendant David R. Miller gave testimony tending to show that there was consideration for each of these instruments, the circumstances surrounding the whole transaction are such that we believe the conclusion reached by the learned circuit judge to be justified. As bearing upon this question it may be noted that the defense of the case was undertaken entirely by defendant David R. Miller and while he in terms disclaimed all interest in the litigation (except a moral one), we believe that he is the real party *98in interest. As consideration for the execution of the quitclaim deed plaintiff testified that he agreed to and afterwards did cancel the $3,600 note and mortgage. These papers when introduced upon the trial were found to be so canceled. It may further be noted that plaintiff’s title is still questioned and may be defeated in the Petersen suit.

Upon a consideration of the whole record we have reached the conclusion that the decree of the court below should be affirmed, with costs to appellee.