Odell

Appeal from a judgment in favor of the plaintiff and from an order denying defendant’s motion for new trial.

The suit was brought to quiet the plaintiff’s title to certain lands, consisting of a tract called the “Lindstrom tract” and an undivided interest in another tract. The defendant is an incompetent, and appears by guardian. The complaint is in the usual form. The case set up in the answer and cross-complaint is in effect that plaintiff’s title was derived from the defendant—who is her brother, and alleged -to have been of feeble intellect—by deed of date September 27, 1889; and that the deed was obtained by fraud and undue influence; also that the deed was intended as a mortgage to s'ecure anticipated expenditures by the plaintiff for the care and maintenance of the defendant. The defendant also pleaded as an estoppel the judgment in a partition suit in the same court, in which plaintiff and defendant were parties; by which the Lindstrom tract was allotted to the plaintiff “as the owner thereof in severalty, subject, however, to an undetermined interest therein of the defendant .... Moss, such interest to be ascertained (thereafter) in some subsequent action or proceeding…