into it in the genuine though mistaken belief that it was in no way contrary to law, and the other party seeks to hold him to it.1 195

Other courts take the view that equity can give no relief against the consequences of ignorance of the law, but may relieve against a mistake in matter of law.198 At any rate, it is considered that the rule on the subject should be applied only in cases of unmixed mistake of law,197 and that equity may accord relief where one has been surprised into doing what it is inequitable to hold him to, where fact and law are blended, or where the mistake of law is so combined with other things that it cannot reasonably be regarded as a deliberate blunder.198 And in a case where two persons believed that they acquired real estate as heirs by adoption, when in fact they had not been adopted, and one of them sold his supposed interest to the other, it was held that their mistake was a mistake of fact as to the ownership of the property, and one which equity would correct.199

In several states, the rule under consideration has been abrogated or modified by statute. Thus, in some of the code states, it is enacted that "mistake of law constitutes a mistake within the meaning of this article [justifying the rescission of contracts] only when it arises from (1) a misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law, or (2) a misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify." 200 And in Maine, the court has pointed out that jurisdiction in equity in cases of "mistake" is expressly conferred by stat

195 Chalmers Chemical Co. v. Chadeloid Chemical Co. (C. C.) 175 Fed. 995.

196 Hopkins' Ex'rs v. Mazyck, 1 Hill Eq. (S. C.) 242. Compare Hart v. Roper, 41 N. C. 349, 51 Am. Dec. 425.

197 King v. Doolittle, 1 Head (Tenn.) 77.

198 Tabor v. Michigan Mut. Life Ins. Co., 44 Mich. 324, 6 N. W. 830.

199 Lewis v. Mote, 140 Iowa, 698, 119 N. W. 152.

200 Civ. Code Cal., § 1578; Rev. Civ. Code Mont., § 4984; Rev. Civ. Code N. Dak., § 5299; Rev. Civ. Code S. Dak., § 1207; Rev. Laws Okl. 1910, § 909.

ute in that state, and that the statute does not in terms limit it to mistakes of fact.201

202

§ 148. Same; Mistake or Ignorance as to Party's Legal Rights. The doctrine has been advanced in some cases of considerable importance that when a person is fully acquainted with the facts, but enters into a contract, or makes a conveyance, in ignorance of his legal rights in the premises, or under a mistaken belief as to what his legal rights are, he can have no relief in the court of equity,2 even where he acted upon the erroneous legal advice of his attorney.203 Under this view, a promise to pay a supposed debt, though made under a mistake of law as to the party's liability, is binding and may be enforced.204 And where a disputed claim, depending on a question of law, is settled by the parties, and a contract is made between them whereby one promises to pay money, he is bound thereby, although such question is really free from doubt, and, if properly resolved, would have released him from all liability.205 So, where the drawer of a bill of exchange knows that time has been given to the acceptor without his (the drawer's) consent, but is ignorant of the fact that in law he is thereby discharged, and so promises to pay the bill, he is bound.206 And the same rule has been applied to cases in which persons interested in decedents' estates have been mistaken or misinformed as to their rights or interests, and so have released or compromised them disadvantageous

ly, 207

201 Tarbox v. Tarbox, 111 Me. 374, 89 Atl. 194; Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556.

202 Dugas v. Town of Donaldsonville, 33 La. Ann. 668; John Soley & Sons v. Jones, 208 Mass. 561, 95 N. E. 94; Mackin v. Dwyer, 205 Mass. 472, 91 N. E. 893; Hughes v. Pealer, 80 Mich. 540, 45 N. W. 589; Kelly v. Connecticut Mut. Life Ins. Co., 27 App. Div. 336, 50 N. Y. Supp. 139; Berks & Dauphin Turnpike Road v. American Telegraph & Telephone Co., 240 Pa. 228, 87 Atl. 580.

203 Treadwell v. Clark, 124 App. Div. 260, 108 N. Y. Supp. 733. Compare Ward v. Yorba, 123 Cal. 447, 56 Pac. 58.

204 Bond v. Coats, 16 Ind. 202; Finks v. Hollis, 38 Tex. Civ. App. 23, 85 S. W. 463.

205 City Electric Ry. Co. v. Floyd County, 115 Ga. 655, 42 S. E. 45. And see Percy v. Hollister, 66 Ill. App. 594.

206 Stevens v. Lynch, 12 East, 38.

207 Hamblin v. Bishop (C. C.) 41 Fed. 74; White v. Thayer, 121

But this doctrine rests upon no valid foundation, and is opposed to the great weight of the authorities. In an English decision of the highest authority we find the following language: "It is said 'ignorantia juris haud excusat,' but in the maxim this word 'jus' is used in the sense of denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may also be the result of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake." 208 So it was said by a distinguished text-writer: "Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relations, either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact." 209 And these views are amply supported by the authorities.210 Under this rule, for example, a transfer to a creditor for the whole debt by a joint debtor, erroneously believing himself bound in solido, will be rescinded, reserving the creditor's right to recover the party's portion of the debt in an action

Mass. 226; Kleimann v. Gieselmann, 114 Mo. 437, 21 S. W. 796, 35 Am. St. Rep. 761.

208 Cooper v. Phibbs, L. R. 2 H. L. 148.

209 2 Pomeroy, Eq. Jur. § 849.

210 Stoeckle v. Rosenheim (Del. Ch.) 87 Atl. 1006; In re McFarlin, 9 Del. Ch. 430, 75 Atl. 281; Gefken v. Graef, 77 Ga. 340; Bottorff v. Lewis, 121 Iowa, 27, 95 N. W. 262; Macklem v. Bacon, 57 Mich. 334, 24 N. W. 91; Hoy v. Hoy, 93 Miss. 732, 48 South. 903, 25 L. R. A. (N. S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137; Powell v. Plant (Miss.) 23 South. 399; Healy v. Healy, 76 N. H. 504, 85 Atl. 156; Champlin v. Laytin, 1 Edw. Ch. (N. Y.) 467; Altgelt v. Gerbic (Tex. Civ. App.) 149 S. W. 233; Toland v. Corey, 6 Utah, 392, 24 Pac. 190; Burton v. Haden, 108 Va. 51, 60 S. E. 736, 15 L. R. A. (N. S.) 1038.

against the joint obligors.211 So where, under a mutual mistake, one purchases land with the understanding that it belongs to another, when in fact it belongs to himself, he is entitled to equitable relief by cancellation of the contract unless the circumstances are such that it would be inequitable to do so.212 On the same principle, where a mortgage was discharged and canceled under the mistaken belief that the complainant was the owner of the equity of redemption, it was held that a court of equity should relieve him from the consequences of his mistake.213 And where one entitled to a large property conveyed the whole of it in return for the release of a small portion, in ignorance of his rights, and the conveyance appeared to have been induced either through the fraud or the gross negligence of his attorney in permitting him to consent to claims set up by his adversary with knowledge that they were unfounded, it was held that the conveyance should be set aside.214

§ 149. Same; Mistake as to Legal Effect of Instrument. A mistake as to the purport of a written instrument is so far analogous to a mistake of fact as to justify the granting of relief in equity. That is, where a writing purporting to evidence an agreement of the parties fails, because of a mistake of law, to express their intention and the agreement which they actually made, equity will cancel the instrument, or otherwise relieve against it, as if the failure of the writing to express the real contract had been caused by a mistake of fact.215 Thus, where the parties and sureties executing a bond supposed it was only in the nature of a bail bond, securing the appearance of a party before the court when required, whereas the legal import of its terms

211 Barthet v. Andry, 14 La. 30.

212 Houston v. Northern Pac. Ry. Co., 109 Minn. 273, 123 N. W. 922, 18 Ann. Cas. 325.

213 Vliet v. Cowenhoven, 83 N. J. Eq. 234, 90 Atl. 681.

214 Eysaman v. Nelson, 79 Misc. Rep. 304, 140 N. Y. Supp. 183. 215 Hunt v. Rousmanier's Adm'r, 8 Wheat. 174, 5 L. Ed. 589; Northwest Eckington Imp. Co. v. Campbell, 28 App. D. C. 483; Fitzgerald v. Peck, 4 Litt. (Ky.) 125; McGraw v. Muma, 164 Mich. 117, 129 N. W. 20; Tygar v. Cook, 77 N. J. Eq. 300, 78 Atl. 23; Sinclair v. Sinclair, 149 App. Div. 949, 134 N. Y. Supp. 114; Kelley v. Ward (Tex. Civ. App.) 58 S. W. 207; Zieschang v. Helmke (Tex. Civ. App.) 84 S. W. 436.

made it also a security for the performance of the judgment or decree to be finally entered, it was considered that the bond had been executed under a mutual mistake as to its legal purport; and since the bond could not be reformed (some of the parties to it being dead) it was held that the surviving party was entitled to an injunction restraining proceedings thereon against him.216 And where it is shown that the parties, through ignorance and mistake, prepared and executed an instrument which conveyed an estate in fee simple to a woman and her heirs, whereas their real intention was to make provision for her children as well as for herself, and to convey the land to her for life with remainder to the children, the mistake may be corrected in equity.217 So, in a case in Ohio, the plaintiff bargained for the purchase of a tract of land and paid the whole of the purchase money. He was to receive a warranty deed on the completion of a survey thereafter to be made. The vendor died and his administrator obtained an order of the probate court authorizing him to convey the land to the purchaser according to the agreement of the intestate. He undertook to make such a conveyance, but by mistake omitted to insert any covenant of warranty, and represented to the purchaser that the deed offered to him was in pursuance of the agreement and the order of the court. The purchaser was ignorant of the effect of the words used, and accepted the deed in the belief that, if the title failed, it would give him a complete remedy against the heirs of the vendor. He was afterwards evicted by a stranger holding a paramount title, and brought his bill in equity for relief, which was granted.218 But in order to claim the benefit of this rule, the complaining party must clear himself from the imputation of negligence or carelessness. Thus, where a person has an opportunity to read a mortgage before signing it, but declines to do so or to have it read or explained to him, preferring to rely on the assurances of a third person as to its contents, he cannot afterwards avoid it on the ground

216 Griswold v. Hazard, 141 U. S. 260, 11 Sup. Ct. 972, 999, 35 L. Ed. 678.

217 Clayton v. Freet, 10 Ohio St. 544.

218 Evants v. Strode's Adm'r, 11 Ohio, 480, 38 Am. Dec. 744.