Opinion of the Court, per FINCH, J. (Kent v. Manchester, 29 Barb. 597; Jackson v. Andrews, 59 N. Y. 244; Paine v. Jones, 75 id. 593; Moran v. McLarty, id. 25; 2 Wharton on Law of Evidence, §§ 936, 937, 1022, 1050, 1054.) Wherever there is an admixture of ingredients going to establish misrepresentation, imposition, undue confidence or influence, especially in all cases of family arrangeinents, equity regards it as a just foundation for relief. (Story's Eq. Jur., §§ 146, 308, 120, 137, 258.) FINCH, J. In this case the minds of the parties never met. The contract in form was not a contract in fact. It originated in mistake, and that mistake not mutual and about the same thing, but different on the part of each. Taking the findings as our guide, it appears that the plaintiff agreed to exchange his house and lot for four lots at Williams Bridge which the defendants represented that they owned and could convey. As matter of fact they did not own them, but did own a triangular parcel in the neighborhood fronting on the Bronx river, but of trifling value and much inferior area, which they say was what they intended to convey, but by mistake the four lots at Williams Bridge were substituted in the deed they gave. It is possible that the findings of fact might well have been different. The evidence on which they rest is quite slender and unsatisfactory, but we cannot say there is none. Assuming them to be true, the situation was this: The plaintiff came into court alleging that by the fraud and deceit of a false assertion of ownership he had been deprived of his property. The defendants rebutted the charge of fraud by showing a mistake, and it is only as the result of that explanation that fraud was not found. If the defendants' representation of ownership related to the four lots, it was a falsehood and a fraud. If it related to the Bronx river lots it was not so understood by the plaintiff and he was misled by a mistake. There was thus either fraud or mistake against which equity may relieve. The defendants' mistake was that they conveyed what they did not own and did not mean to sell. The plaintiff's was that he bought what he meant to buy, but without the asserted title in his grantors. Opinion of the Court, per FINCH, J. What one meant to sell the other did not mean to buy, and what one meant to buy the other did not mean to sell. Such was the judgment rendered and it was right. Its details are criti cised in but one respect. There was a mortgage to a savings bank, resting as an incumbrance on the plaintiff's property, and which by acceptance of the deed the defendants assumed and agreed to pay, and they now complain that they are left liable to the savings bank for the amount of the mortgage debt. We do not think that result will follow. The judgment which declares that there was no effectual contract, and therefore no valid assumption of the mortgage, binds both parties and privies; and the bank, which had no right except through the promise to plaintiff, and dependent wholly upon it, and could only claim through it, is bound, if not by the judg ment itself, at least by the effect of the judgment as annulling the whole transaction. The principle decided in Dunning v. Leavitt (85 N. Y. 30; 39 Am. Rep. 617) fully covers the point. There Mrs. Leavitt's promise to pay the mortgage debt was founded upon the conveyance to her, but the judgment in ejectment brought by the Howell heirs determined that no title passed to her by her deed, that the land was not transferred, and as a consequence that no consideration for her promise to the grantor for the benefit of the mortgage remained, and so she never became liable. The effect of the decree here is the same. It annuls the deed and adjudges that the land did not pass, and so the savings bank can have no right of action upon a promise divested by the judgment of any consideration. Its rights were wholly dependent upon an effectual transfer of the mortgaged property, and affected by the equities existing between the original parties. The judgment should be affirmed, with costs. Judgment affirmed. 95 j173 Statement of case. JAMES O'BRIEN, late Sheriff, etc., Respondent, v. John N. Upon a judgment rendered prior to the passage of the act reducing the rate of interest to six per cent (Chap. 538, Laws of 1879), the judgment creditor is entitled to interest at the old rate, seven per cent, up to January 1, 1880, when that act went into effect, but only at the reduced rate, six per cent, thereafter. (MILLER and DANFORTH, JJ., dissenting.) A judgment is not a "contract or obligation" within the exception in said act. (MILLER and DANFORTH, JJ., dissenting.) It seems, that those words apply only to contracts or obligations resting upon the voluntary mutual agreement of the parties. (MILLER and DANFORTH, JJ., dissenting.) A judgment is an obligation of record, and interest thereon is given, not on the principle of implied contract, but as damages for delay in performing the obligation, the measure of which is the statutory rate. (Submitted March 11, 1884; decided April 15, 1884.) APPEAL from order of the General Term of the Supreme Court, in the first judicial department, made January 8, 1884, which affirmed an order of Special Term, restraining the sheriff of the county of New York from collecting, upon a judgment issued to him herein, interest at a greater rate than six per cent after January 1, 1880. Judgment was perfected in this action in favor of plaintiff and against defendants February 10, 1877. Execution thereon was issued to the sheriff November 19, 1883, instructing the sheriff to collect the amount thereof with interest at the rate of seven per cent from the date of the entry of judgment. Lawrence & Waehner for appellants. Lucien Birdseye for respondent. The provisions of the statute touching the judgment in question were, by law, as much a part of the express provisions and conditions of the judgment as the express words adjudging to the plaintiff his damages and costs. (U. S. v. Price, 9 How. [U. S.] 83, 91; Randall v. Sackett, 77 N. Y. 482.) There was attached Opinion of the Court, per EARL, J. to the judgment immediately upon its entry, and became a part of it, the vested and absolute right to recover and collect interest thereon at the rate of seven per cent per annum. (Bailey v. Mayor, etc., 7 Hill, 146; Cooper v. North, 1 How. Pr. 59; Bull v. Ketchum, 2 Denio, 188; 1 R. S. 771*, § 1.) The judgment in question is a "contract" within the exception of the act of June 20, 1879. (3 Black. Com. 117, 160; 1 Chit. Pl. 111, 126, 142; 1 Paine & Duer's Pr. 3, 10; 1 Burr. Pr. 22, 24; Crawford v. Whittal, 1 Doug. 4; Walker v. Witter, id. 1.) The judgment in question being an interest-bearing "obligation" and "contract," made before the passage of chapter 538 of the Laws of 1879, it was saved from the operation of the enacting clause by the excepting clause and by the paramount law. (Const. of the U. S., art. 1, § 10; Man v. Eckford, 15 Wend. 502, 519; Burch v. Newbury, 10 N. Y. 302.) The supposed rule that the rate of interest fixed by statute governs as to damages on contracts not of record has not been applied to judgments, or to any contract by statute of record. (N. R. Meadow Co. v. Shrewsbury Church, 22 N. J. L. 424, 429; Verree v. Hughes, 6 Halst. [N. J.] 91; Wilson v. Marsh, 2 Beas. 289; Cox v. Marlott, 7 Vroom, 389, 390; Mason v. Coke, Breese, 52; Wilson v. Cobb, 31 N. J. Eq. 91; Eastin v. Van Dorn, Walk. [Miss.] 214; Mower v. Kip, 2 Edw. Ch. 165; 6 Paige, 88; Mayor, etc., of Macon v. Trustees B. Co. Academy, 7 Ga. 204; Allen v. Adams, 15 Vt. 16; Mann v. Taylor, 1 McCord's L. R. 171; Ex parte Mann, id. 589; Troxwell v. Hugate, Hardin [Ky.], 2; Russell v. Shepard, id. 44; Taul v. Moore, id. 94; Beatty v. Smith, 2 H. & M. 395; Scott v. Trents, 4 id. 358.) EARL, J. By the decided weight of authority in this State, where one contracts to pay a principal sum at a certain future time with interest, the interest prior to the maturity of the contract is payable by virtue of the contract, and thereafter as damages for the breach of the contract. (Macomber v. Dunham, 8 Wend. 550; United States Bank v. Chapin, 9 id. 471; Hamilton v. Van Rensselaer, 43 N. Y. 244; Ritter v. Phillips, Opinion of the Court, per EARL, J. 53 id. 586; Southern Central R. R. Co. v. Town of Moravia, 61 Barb. 180.) And such is the rule as laid down by the Federal Supreme Court. (Brewster v. Wakefield, 22 How. [U. S.] 118; Burnhisel v. Firman, 22 Wall. 170; Holden v. Trust Co., 100 U. S. 72.) The same authorities show that after the maturity of such a contract, the interest is to be computed as damages according to the rate prescribed by the law, and not according to that prescribed in the contract if that be more or less. But when the contract provides that the interest shall be at a specified rate until the principal shall be paid, then the contract rate governs until payment of the principal, or until the contract is merged in a judgment. And where one contracts to pay money on demand "with interest," or to pay money generally "with interest," without specifying time of payment, the statutory rate then existing becomes the contract rate and must govern until payment, or at least until demand and actual default, as the parties must have so intended. (Paine v. Caswell, 68 Me. 80; 28 Am. Rep. 21; Eaton v. Boissonnault, 67 Me. 540; 24 Am. Rep. 52.) If, therefore, this judgment, the amount of which is by its terms payable with interest, is to be treated as a contract as a bond executed by the defendants at its date, then the statutory rate of interest existing at the date of the rendition of the judgment is to be treated as part of the contract and must be paid by the defendants according to the terms of the contract, and thus the plaintiff's contention is well founded. But is a judgment, properly speaking, for the purposes now in hand, a contract? I think not. The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented. All the authorities assert that the existence of parties legally capable of contracting is essential to every contract, and yet they nearly all agree that judgments entered against lunatics and others incapable in law of contracting are conclusively binding until vacated or reversed. In Wyman v. Mitchell (1 Cowen, 316), SUTHERLAND, J., said that "a judgment is in no sense a con tract or agreement between the parties." In McCoun v. The |