118. It is apparent from this language that the decision of his Lordship rested upon mixed considerations, and not exclusively upon mere mistake or ignorance of the law by the daughter. There was no fraud in her brother; but it is clear that she relied upon her brother for knowledge of her rights and duties in point of law, and he, however innocently, omitted to state some most material legal considerations affecting her rights and duty. She acted under this misplaced confidence and was misled by it, which of itself constituted no inconsiderable ground for relief. But a far more weighty reason is that she acted under ignorance of facts; for she neither knew, nor had any means of knowing, what her orphanage share was when she made her election. It was therefore a clear case of surprise in matters of fact as well as of law. No ultimate decision was made in the case, it being compromised by the parties.

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119. The case of Evans v. Llewellyn1 is expressly put in the decree upon the ground of surprise, the conveyance having been obtained and executed by the plaintiffs improvidently.' It was admitted that there was no sufficient proof of fraud or imposition practised upon the plaintiff (though the facts might well lead to some doubt on that point), and the plaintiff was certainly not ignorant of any of the facts which respected his rights. The Master of the Rolls (Sir Lloyd Kenyon, afterwards Lord Kenyon) said: The party was taken by surprise. He had not sufficient time to act with caution; and therefore, though there was no actual fraud, it is something like fraud, for an undue advantage was taken of his situation. I am of opinion that the party was not competent to protect himself; and therefore this court is bound to afford him such protection, and therefore these deeds ought to be set aside as improvidently obtained. If the plaintiff had in fact gone back, I should not have rescinded the transaction.' 2

120. The most general class of cases relied on as exceptions to the rule is that class where the party has acted under a misconception or ignorance of his title to the property respecting which some agreement has been made or conveyance executed. So far as ignorance in point of fact of any title in the party is an ingredient in any of these cases, they fall under a very different con12 Bro. Ch. R. 150; s. c. 1 Cox, R. 333, more full. 2 1 Cox, R. 340, 341.

sideration. But so far as the party, knowing all the facts, has acted upon a mistake of the law applicable to his title, they are proper to be discussed in this place. Upon a close survey many although not all of the cases in the latter predicament will be found to have turned not upon the consideration of a mere mistake of law stripped of all other circumstances, but upon an admixture of other ingredients going to establish misrepresentation, imposition, undue confidence, undue influence, mental imbecility, or that sort of surprise which equity uniformly regards as a just foundation for relief.2 (a)

1 See Ramsden v. Hylton, 2 Ves. 304; Cann v. Cann, 1 P. Will. 727; Farewell v. Coker, cited 2 Meriv. 269; McCarthy v. Decaix, 2 Russ. & Mylne, 614. In this last case Lord Chancellor Brougham held that where a husband renounced his title to his wife's property, from whom he had been divorced, under a mistake in point of law that the divorce was valid and he had no longer any title to her property, and under a mistake of fact as to the amount of the property renounced, the information respecting which the other party knew and withheld from him, he was entitled to relief. But the relief seems to have been granted upon mixed considerations. His Lordship in one part of his opinion said: What he (the husband) has done was in ignorance of law, possibly of fact; but in a case of this kind that would be one and the same thing.' See also Corking v. Pratt, 1 Ves. 400.

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2 See Willan v. Willan, 16 Ves. 82. Mr. Jeremy (Eq. Jurisd. Pt. 2, ch. 2, p. 366) seems to suppose that there is something technical in the meaning of the word surprise' as used in Courts of Equity; for, speaking upon what he says is technically called a case of surprise, he adds, which [surprise] it seems is a term for the immediate result of a certain species of mistake upon which this court will relieve,' a definition or description not very intelligible, and rather tending to obscure than to clear up the subject. In another place (ch. 3, p. 383, note) he says that surprise is often used as synonymous with fraud; but that they may perhaps be distinguished by the circumstance that in instances to which the term "fraud " is applied, an unjust design is presupposed; but that in those to which surprise is assigned, no fraudulent intention is to be presumed. In the former case one of the parties seeks to injure the other; in the latter both of them act under an actual misconception of the law.' Whether this explanation makes the matter much clearer may be doubted. The truth is that there does not seem anything technical or peculiar in the word 'surprise' as used in Courts of Equity. The common definition of Johnson sufficiently explains its sense. He defines it to be the act of taking unawares; the state of being taken unawares; sudden confusion or perplexity. When a Court of Equity relieves on the ground of surprise, it does so upon the ground that the party has been taken unawares; that he has acted without due deliberation, and under confused and sudden impressions.

(a) See Jordan v. Stevens, 51 Maine, 78; Freeman v. Curtis, Ib. 140; Forman v. Wright, 11 C. B.

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481, 492 (innocent misrepresentation of law); Carley v. Lewis, 24 Ind. 23; Tyson v. Tyson, 31 Md. 134.

121. It has been laid down as unquestionable doctrine, that if a party acting in ignorance of a plain and settled principle of law is induced to give up a portion of his indisputable property to another under the name of a compromise, a Court of Equity will relieve him from the effect of his mistake.1(a) But where a doubtful question arises, such as a question respecting the true construction of a will, a different rule prevails; and a compromise fairly entered into with due deliberation will be upheld in a Court of Equity as reasonable in itself to terminate the differences by dividing the stake, and as supported by principles of public policy.2

122. In regard to the first proposition the terms in which it is expressed have the material qualification that the party has upon plain and settled principles of law a clear title, and yet is in gross ignorance that he possesses any title whatsoever. Thus in England, if the eldest son who is heir at law of all the undisposed-of

The case of Evans v. Llewellyn, 2 Bro. Ch. R. 150, is a direct authority to this very view of the matter. There may be cases where the word 'surprise' is used in a more lax sense, and where it is deemed presumptive of, or approaching to, fraud. (1 Fonbl. Eq. B. 1, ch. 2, § 8, p. 125; Earl of Bath and Montague's Case, 3 Ch. Cas. 56, 74, 103, 114.) But it will always be found that the true use of it is where something has been done which was unexpected, and operated to mislead or confuse the parties on the sudden, and on that account has been deemed a fraud. See Earl of Bath and Montague's Case, 3 Ch. Ca. 56, 74, 114; Irnham v. Child, 1 Bro. Ch. 92; Marquis of Townshend v. Stangroom, 6 Ves. 327, 338; Twining v. Morrice, 2 Bro. Ch. R. 326; Willan v. Willan, 16 Ves. 81, 86, 87. In Evans v. Llewellyn, 1 Cox, R. 340, the Master of the Rolls, adverting to the cases of surprise where an undue advantage is taken of the party's situation, said: The cases of infants dealing with guardians, of sons with fathers, all proceed upon the same general principles and establish this, that if the party is in a situation in which he is not a free agent, and is not equal to protecting himself, this court will protect him. See 1 Fonbl. Eq. B. 1, ch. 2, § 8. See post, § 234, § 235 and note (1), §§ 236, 237, 238, 239, 240, 242.

1 Naylor v. Winch, 1 Sim. & Stu. 555. See also 1 Ves. 126; Moseley, R. 364; 2 Jac. & Walk. 205; Leonard v. Leonard, 2 B. & Beatt. 180; Dunnage v. White, 1 Swanst. 137. See Hunt v. Rousmaniere, 8 Wheat., R. 211 to 215; s. c. 1 Peters, Sup. C. R. 1, 15, 16; Gudon v. Gudon, 3 Swanst. 400. In the very case in which this doctrine is laid down in such general terms, relief was denied because the claim was doubtful, and the compromise was after due deliberation. Naylor v. Winch, 1 Sim. & Stu. 555. Is there any distinction between ignorance of a principle of law and mistake of a principle of law as to this point? See 1 Madd. Ch. Pr. 61.

2 Ibid; Pickering v. Pickering, 2 Beavan, R. 31, 56.

(a) Whelen's App. 70 Penn. St. 410.

fee-simple estates of his ancestor, should, in gross ignorance of the law, knowing however that he was the eldest son, agree to divide the estates with a younger brother, such an agreement, executed or unexecuted, would be held in a Court of Equity invalid, and relief would be accordingly granted. In a case thus strongly put there may be ingredients which would give a coloring to the case independent of the mere ignorance of the law. If the younger son were not equally ignorant, there would be much ground to suspect fraud, imposition, misrepresentation, or undue influence on his part. And if he were equally ignorant, the case would exhibit such a gross mistake of rights as would lead to the conclusion of such great mental imbecility, or surprise, or blind and credulous confidence on the part of the eldest son, as might fairly entitle him to the protection of a Court of Equity upon general principles. Indeed where the party acts upon the misapprehension that he has no title at all in the property, it seems to involve in some measure a mistake of fact, that is, of the fact of ownership arising from a mistake of law. A party can hardly be said to intend to part with a right or title of whose existence he is wholly ignorant; and if he does not so intend, a Court of Equity will in ordinary cases relieve him from the legal effect of instruments which surrender such unsuspected right or title.3

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1 Jeremy on Eq. Jurisd. Pt. 2, ch. 2, p. 366; Leonard v. Leonard, 2 B. & Beatt. 182.

2 See Hunt v. Rousmaniere, 8 Wheat. R. 211, 212, 214; s. c. 1 Peters, Sup. C. R. 15, 16; s. c. 2 Mason, R. 342; 3 Mason, R. 294. See Ayliffe's Pand. B. 2, tit. 15, p. 116.

8 See Ramsden v. Hylton, 2 Ves. 304; 2 Meriv. R. 269. I am aware that generally where the facts are known the mistake of the title of heirship is treated as a mistake of law. Indeed in the civil law it is put as the most prominent illustration of the distinction between ignorance of fact and ignorance of law. 'Si quis nesciat se cognatum esse, interdum in jure, interdum in facto, errat. Nam si et liberum se esse, et ex quibus natus sit, sciat, jura autem cognationis habere se nesciat, in jure errat. At si quis forte expositus, quorum parentum esset, ignoret, fortasse et serviat alicui, putans se servum esse; in facto, magis quam in jure errat.' Dig. Lib. 22, tit. 6, l. 1, § 2; Pothier, Pand. Lib. 22, tit. 6, § 1, n. 1; 1 Domat, Civil Law, B. 1, tit. 18, § 1, n. 4. Is ownership or heirship a conclusion of law, or of fact, or a mixed result of both? Is title to an estate a fact or not? Is ignorance of the title when all the facts on which it legally depends are known, ignorance of a fact, or of law? Mr. Powell puts the case of Lansdowne v. Lansdowne (Moseley, R. 364) as a case of misrepresentation of a fact, that is, that the party was not heir, when in fact he was heir. See 2 Powell on Contracts, 196. An error of law, in relation to

123. One of the earliest cases on this subject is Turner v. Turner (in 31 Car. 2),1 where the plaintiff's father had lent a sum on mortgage to A, who mortgaged lands to the father and his heirs with a proviso that on payment of the money to the father or his heirs the premises were to be reconveyed to A. The plaintiff was executor of his father, and claimed the mortgage as vesting in the executor and not in the heirs. The defendant was the son and heir at law of the plaintiff's eldest brother, and set up a release of this mortgage and an allotment of it to him upon an agreement made among the heirs for a division of the personal estate and a subsequent receipt of the mortgage by him. The plaintiff insisted that at the time of the release he looked on the mortgage as belonging to the defendant as heir at law, and knew not his own title thereto; and that the mortgage was worth £8,000, and the shares on the division only £250 apiece. The Lord Chancellor (Lord Nottingham) relieved the plaintiff, stating that the plaintiff had an undoubted right to the mortgaged premises. This case is reported without any statement of the grounds of the decision, so that it is impossible now to ascertain them. There may have been surprise, or imposition, or undue influence; or the defendant might have well known the plaintiff's rights, and suppressed his own knowledge of them. If it proceeded upon the naked ground of a mistake of law, it is not easily reconcilable with other cases. But if it proceeded upon the ground that the plaintiff had no knowledge of his title to the mortgage, and therefore did not intend to release any title to it, the release might well be relieved against as going beyond the intentions of the parties upon a mutual mistake of the law. It might then be deemed in some sort a mistake of fact as well as of law. It was certainly a plain mistake of the settled law; and if both parties acted under a mutual misconception of their actual rights, they could not justly be said to have intended what they did. Mutual misapprehension of

heirship, is not, in the civil law, always fatal to the party. It will not deprive him of a right resulting from his heirship; as if a nephew accounts with an uncle for the whole effects of a deceased brother upon the mistake of law that the uncle was sole heir, he shall be restored to his rights. 1 Domat, Civil Law, B. 1, tit. 18, § 1, n. 15. The rule of the Civil Law is, 'Juris ignorantia non prodest adquirere volentibus; suum vero petentibus non nocet.' Dig. Lib. 22, tit. 6, 1. 7.

1 2 Rep. in Ch. 81 [154].