The opinion of the court was delivered by

This case has been to this court before. 27 S. C., 1. In the judgment upon the first hearing, it was stated that the plaintiff had mortgaged his house and lot on Green street, nf Columbia, to the Columbia Building and Loan Association, and said lot was sold under foreclosure, and bought in by the said association for $140. The amount of his debt at that time ivas about $300, and the officers of said association offered to reconvev said property to the plaintiff for that amount. The defendant, Thomas S. Cavender, paid it in the name of his son, Charles, and took titles in his name on March 27, 1879. Shortly after his purchase, the said T. S. Cavender. executed a lease of the premises to the plaintiff, “to hold for the term of his natural life and that of his wife, Susannah, and the survivor of them,” it being stipulated in said lease that the lessee should pay the sum of $36 per annum as rent, in monthly instalments of $3 each, &c.; upon default of which for thirty days, the said Charles Cavender should have the right to reenter and repossess the premises, &c. It seems that the plaintiff was furnished with a book in which Cavender receipted for sundry payments made as “rent,” which was subsequently mislaid or lost. The parties failing to agree in reference to some matter connected with the land, Cavender instituted proceedings to oust Nesbitt from the premises, who then brought this action to set aside the said lease as fraudulent and void, and to declare the deed from Dial to Cavender a mortgage, &c.

The issues were referred to the master, who took a mass of testimony (now printed in the Brief), and disallowed the prayer of the complaint. Upon exceptions to this report, Judge Pressley found as a fact that the deed from the building association to *40Cavender was intended as a mortgage, and that the lease to plaintiff was a device to foreclose the same easily, on non-payment of the interest thereon called “rent”; and held that the deed should stand as a mortgage to secure the loan made to Nesbitt to buy the land. Upon appeal, this court adjudged that the testimony failed to establish an agreement, that the deed from Dial to Cavender, at the instance of Nesbitt, was intended to operate as a mortgage from Nesbitt to Cavender, but remanded the case, with leave to the plaintiff to amend his complaint, so as to raise the question, whether the whole transaction, considered together, amounted to a constructive trust on the part of Cavender in favor of the plaintiff, Nesbitt, in regard to the said lot and the $300, which Cavender advanced to purchase it. See 27 S. C., 1.

Accordingly the ease went back, and the plaintiff amended his complaint in conformity with the leave given. The parties agreed that the new issue should be heard upon the same evidence taken and reported by the master on the former trial, as found in the printed case for appeal, reserving the right to object to any or all of said testimony, on the grounds (1) statute of frauds; (2) irrelevancy to the new issue; (3) hearsay or res inter alios acta, &c. Upon this evidence, the question made by the amended pleadings was argued before Judge Witherspoon, who found as matter of fact, “that Thomas S. Cavender did not acquire the title to the property conveyed by Dial to Charles Cavender by positive fraud” ; and held as matter of law, that the house and lot conveyed by George L. Dial, president, &c., to Charles Cavender is not impressed with a constructive trust ex maleficio in plaintiff’s favor, and dismissed the amended complaint with costs.

From this decree the plaintiff appeals upon the ground, “That upon the evidence in the cause, and upon that of the disinterested witnesses alone, and the equities applicable thereto, there was a clear case of constructive trust established in favor of the plaintiff; and when his honor held otherwise, as he has done in the decree, he set at naught the controlling evidence, and entirely misconceived the equities, which, in every aspect of the case, entitled the plaintiff to a decree.”

The only question now before the court is, whether Cavender acquired title to the lot conveyed to him by Dial under such cir*41cumstances and in such manner as to fasten on it a constructive trust in favor of Nesbitt. Mr. Pomeroy says: “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means, or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably en-entitled to the same,” &c. 2 Pom. Eq. Jur., §§ 1053, 1055.

The question was one of fact, which was decided by the Circuit Judge adversely-to the plaintiff. Was that error? It is known to be the rule of this court not to disturb the finding of a Circuit Judge upon a question of fact, unless it is clearly against the weight of the evidence. We have carefully re-read the testimony in this case, and we find it not only conflicting, but in many respects absolutely contradictory. Dial, who executed the deed, is now dead, and we know nothing of what actually occurred at the time the deed was executed, except from the parties immediately interested. But without considering their testimony, it seems to us that the circumstances show with reasonable certainty the following facts: That at the foreclosure sale, Nesbitt’s lot was bid in by the building association at a great sacrifice; that their debt being about $300, they kindly offered to let Nesbitt have the land back upon the payment of that sum; that not being able to raise it, he applied to Cavender to help him, his object clearly being to get the property into hands where he might redeem it by refunding the money advanced, with interest; and in this way'■ alone (as the friend of Nesbitt), Cavender got into the business, and (sending Nesbitt for Dial) he received titles, paying less than one-half of its value for a lot which he really did not want-knowing at the time that Nesbitt, if not also Dial, believed that the purchase was in some way for the benefit of Nesbitt. Prom these circumstances alone, it does seem to us that the natural conclu-' sion would be, that Cavender paid for the lot on the faith and confidence that it was for the benefit of Nesbitt, upon the refund*42ing of the purchase money and interest. If this were all, I should certainly so conclude.

But it seems that on the very day the deed to Cavender bears date, viz., March 27, 1879, Nesbitt executed to Cavender a formal lease of the premises, “to hold for the term of the natural life of the said James Nesbitt and Susannah, his wife, and the survivor of them” — agreeing to pay as “rent” for the premises $36 per annum, in monthly instalments of $3 each, and also to pay taxes, repairs, &c., and to quit and deliver up the same to lessor peaceably and quietly at the end of the term. “It is expressly agreed that if there is default in the payment of the rent above stipulated for thirty days after the same is due, the said Cavender shall have the right to reenter and repossess the said premises,” &c. This lease is in its terms very explicit, and most certainly admitted that the absolute title was in Cavender, and, if genuine, does indicate that the only advantage Nesbitt stipulated for ivas the privilege of renting the lot during his life for $36 per annum. Conceding that the parol testimony on both sides may be conflicting and inconsistent, there can be no mistake about the terms of this written paper, which, considered as an admission of the plaintiff, negatives the idea of a constructive trust.

It is urged, however, that the execution of this paper, called a lease, was a deliberate imposition and fraud on the part of Cavender, an intelligent business man, upon an ignorant, uneducated colored man, and should be entirely disregarded, or at least considered as a mere device to enable Cavender to obtain easy possession of the premises, upon the failure to pay the monthly interest. There seems to be no doubt that Nesbitt was eager to execute the paper, and did sign it in the presence of one Wallace (clerk in Cavender’s office), who testified that some changes in the paper were made at the instance of Nesbitt; that it was read over to him, and he expressed no dissatisfaction with it. Besides, it seems that he acquiesced in it for years, and kept a little book in which from time to time Cavender receipted for small payments made as “rent.” The terms of the paper are in no way obscure or equivocal, but, on the contrary, very explicit. If Nesbitt was uneducated, it does not appear that he was lacking *43in that common sense, which, unaided, was quite sufficient to understand the general purpose of the paper. When persons of ordinary understanding undertake to enter into contracts, they may not escape their just consequences simply on the ground of over-confidence or want of proper care and prudence upon their part. Under the rules of evidence, a deed in writing, deliberately executed, is of a character too solemn to be lightly brushed away by inconsistent and inconclusive parol testimony. We cannot say that the judge was in error in finding that the evidence was insufficient to show that Cavender acquired the title to the lot conveyed by George L. Dial to Charles Cavender by positive fraud, and that in consequence the lot was impressed with a constructive trust ex maleficio in favor of the plaintiff.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.