in the number, (a) names, or description of legatees ;(b) or by In what cases (a) Sleech v. Thorington, 2 Ves. 260. Tomkins v. Tomkins, cit. 19 Ves. 126. Scott v. Fenhoulet, 1 Cox, 79. Stebbing v. Walkey, 2 Bro. C. C. 85. 1 Cox, 250. Humphreys v. Humphreys, 2 Cox, 184. Garvey v. Hibbert, 19 Ves. 125. (b) Ulrich v. Lichfield, 2 Atk. 372. Hussey v. Berkeley, 2 Eden, 194. Andrews v. Dobson, 1 Cox, 425. West v. Primate of Ireland, 3 Bro. C. C. 148. 2 Cox, 258. Delmare v. Rebello, 2 Bro. C. C. 446. 1 Ves. jun. 412. Standen v. Standen, 2 Ves. jun. 589. 6 Bro. P. C. 195. Abbot v. Massie, 3 Ves. 148. Kennell v. Abbott, 4 Ves. 808. Smith v. Coney, 6 Ves. 42. Holmes v. Custance, 12 Ves. 279. Smith v. Campbell, Coop. 278. Careless v. Careless, 1 Meriv. 384. Gohegan, 2 J. J. Marsh. 133. Hunt v. Rousmiere's adm'r. 1 Peters, 1, 13. Harrison v. Jameson, 3 J. J. Marsh. 232. Hunt v. Freeman, 1 Hammond, 501. Phoenix Ins. Co. v. Gumee, 1 Paige, 278. Chamberlain v. Thompson, 10 Conn. Rep. 243. Equity relieves against mistake, as well as fraud in a deed or contract in writing; and this, either where the plaintiff seeks relief affirmatively, on the ground of mistake, or where the defendant sets it up as a defence, or to rebut an equity. Gillespie v. Moon, 2 Johns. Ch. Rep. 585. Rosevelt v. Dale, 2 Cow. 129. Parol evidence is inadmissible to show a mistake in law as a ground for reforming a written instrument founded on such mistake. Wheaton v. Wheaton, 9 Conn. Rep. 96. The court will open settlements made by mistake, although receipts in full have passed, and the note on which payments were made has been taken up. MCrae v. Hollis, 4 Desau. 122. Equity relieved against a judgment obtained against a sheriff through a mistake of the clerk as to the bail-piece, which the plaintiff's counsel had agreed might be filed. Smith v. Wallace, 1 Wash. 254. Relief was granted in equity against a mistake in drawing a bond. Chapman v. Allen, Kirby, 399. Chancery will relieve against mistakes and accidents. Matson v. Parkhurst, Root, 404. Gay v. Adams, 1 Root, 105. Where the date and name of the payee of a note, mentioned in the condition of a mortgage deed was mis-described through mistake, it was held, on a bill for foreclosure, stating such mistake, that it might be corrected not only as between the parties to the deed, but as between a mortgagor and a subsequent mortgagee with notice. Peters et al. v. Goodrich, 3 Conn. Rep. 146. The court of chancery, in the exercise of its moral jurisdiction, will upon the proof of fraud, mistake, or surprise, raise an equity by which the written agreement of the parties shall be rectified. It is essential, however, that such fraud, mistake or surprise, should be alleged in the bill as the ground and object of the parol proof. Wesley v. Thomas, 6 Har. & Johns. 24. Equity relieves against mistakes, as well as frauds, in a deed or contract in writing and parol evidence is admissible to prove the mistake, though it is denied in the answer; and this when the plaintiff seeks relief, affirmatively, on the ground of mistake. As, where the owner of two adjoining tracts of land having sold one of them, in describing the metes and bounds in a deed executed to the purchaser, by mistake included both tracts. The proof of the granted. In what cases arbitrators in a matter of fact, or in a matter of law if (acgranted. mistake being perfectly satisfactory, the vendee was decreed to convey to the vendor the tract of land not intended to be conveyed. Newson v. Bufferlow, 1 Dev. Eq. 379. It is no objection to the recision of a contract on the ground of the mistake of the vendor in supposing he had some title when he had none, that a conveyance with warranty against certain persons who were also without right, had been executed. Bowlin v. Pollock, 7 Monroe, 33. Mistakes and frauds are equally relievable in equity. Dunlap v. Stetson, 4 Mason, 349. A mistake in a writing referring to another, may, in a court of equity, be corrected by the writing referred to. Argenbright v. Campbell, 3 Hen. & Munf. 144. In what cases a court of equity will reform a written instrument, upon the ground of mistake. The mistake must be made out by the clearest and most unequivocal evidence. It seems that the court would not reform it to the prejudice of bona fide purchasers without notice. United States v. Monroe, 5 Mason, 572. The parties agree to exchange lands, acre for acre; in laying off the land a mistake is committed by which one party receives a deed for one hundred and five, instead of seventy-two acres. He must give up the surplus. That the deed is for more or less does not make the mistake binding. Expression of satisfaction with the exchange and deed, by the party injured, before the mistake and fraud was discovered, ought not to preclude the correction of the mistake. Shipp v. Swann, 2 Bibb, 82. The court will not readily correct mistakes after a lapse of time. Westbrook v. Harbeson, 2 M'Cord's Ch. Rep. 118. In Massachusetts the court has no jurisdiction, in equity, in cases of mere mistake. Gould v. Gould, 5 Met. Rep. 274. Equity will relieve against a mistake. Thus, where A. sold one hundred and sixty-five acres of land to B., and subsequently B. procured from A. an obligation to convey all his right in the tract, supposing it contained one hundred and sixty-five acres, when in fact it contained more, equity refused to enforce the claim for the surplus. Smith v. Smith, 4 Bibb, 81. Where a bill is filed solely to correct a mistake in a contract, chancery will not retain the bill on the ground that there is money due on the contract from the defendant. Ex'rs of Getman v. Beardsley, 2 Johns. Ch. Rep. 274. Where the executor and all concerned believed a tract of land to be chargeable with the payment of debts, and the executor accordingly paid them, equity will entertain jurisdiction of the case, and compel the legatees to refund. M Campbell v. M'Campbell, 5 Litt. 93. Courts of equity will grant relief agaiust acts done and contracts executed under a mistake of facts. Champlin v. Layton, 18 Wen. 407. And where relief is granted in such cases, it seems it is extended as well to the refunding of money paid under the contract, as to the annulling of the contract itself. Ib. A party under a clear and unequivocal mistake of his legal rights, where such rights are of a doubtful character, will be relieved in equity. Lammat v. Bowley, 6 Har. & Johns. 500. An executor being sued on a bond of his testator of more than twenty years' standing, was advised by his counsel to rely on the presumption of payment arising from the length of time; and supposing such presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power. In consequence of evidence cording to the recent modification of the doctrine,) a question In what cases given by one of the jurors in the jury room, a verdict was found against him. He afterward obtained a new trial by applying to a court of equity, on the ground of mistake and accident. Price v. Fuqua, 4 Munf. 68. A bill cannot be maintained to correct a mistake in a deed, so as to make it conform to the parol contract, and include more land, if defendant deny it in his answer. Churchill v. Rogers, 3 Monroe, 81. Money paid by mistake and on a usurious agreement, above the legal interest was recovered back by English bill. Ashbrook v. Watkins, 3 Monroe, 82. A court of equity has jurisdiction to decree the repayment of money by mistake; notwithstanding the plaintiff's remedy by assumpsit for money had and received. Witkins v. Woodfin, 5 Munf. 183. Mistake in a writing is a principal ground of chancery jurisdiction; and a court of equity is the proper tribunal to apply to for relief against the effect of a writing, by which a party, in consequence of an incorrect estimate of the weights and number of packages, receipted for and covenanted to deliver a greater quantity of merchandize than was in fact delivered to him. Lyle v. Williamson, 6 Monroe, 143. It is no objection to the recision of a contract on the ground of the mistake of the vendor in supposing he had some title when he had none, that a conveyance with warranty against certain persons who were also without right, had been executed. Bowlin v. Pollock, 7 Monroe, 33. Mistakes and frauds are equally relievable in equity. Dunlap v. Stetson, 4 Mason, 349. Where a farm is sold at so much per acre, if the quantity be mistaken by the parties, a court of equity will relieve the party injured by the mistake. In such case the vendee has a right to take the farm at the price of the real number of acres, and to have compensation for the deficiency, if he has paid the consideration. Stebbins v. Eddy, 4 Mason, 414. Where the bond of a surety, required by statute to be taken in the name of the infant, is taken in the name of the people, chancery will correct the mistake and consider the bond valid; and it will relieve in cases of mistakes in agreements as well in the case of a surety as in any other. Wiser v. Blachly, 1 Johns. Ch. Rep. 607. Courts of chancery will not relieve for mistakes of law. United States v. Daniels, 12 Peters, 32. A. mortgaged certain lands to B. to secure him against loss as endorser of his (A.'s) note. A tract of land intended by the parties to be inserted in the mortgage, was omitted by mistake. Afterwards certain creditors of A. obtained judgment against him. B. paid the indorsed note, which was for a larger amount than the mortgaged lands, and the omitted tract were worth; and A. was insolvent. Held, that a court of chancery might correct the mistake in the mortgage, and free the omitted tract from the lien of the judgments. White v. Wilson, 6 Blackf. Rep. 448. Where a lot or farm is sold in gross, or by the boundaries, and is conveyed by a deed containing the words more or less, such words being inserted upon deliberation, because neither party professes to know the precise quantity of land conveyed, and it is afterwards found that the quantity of land is less than the parties supposed, the court of chancery will not interfere for the relief of the purchaser; in the absence of any fraud or intentional misrepresentation, as to the quantity of land contained within the boundaries of the deed. Marvin v. Bennett, 8 Paige, 312. Courts of equity sometimes give relief in cases of mutual mistakes, unaccompanied by fraud, when the property which one party intended to buy, did not in fact exist; or where the subject-matter of the sale and purchase is so materially variant, from what the parties supposed it to be, that the substantial object of the sale and purchase entirely fails. Ib. Where a sale of land is con granted. In what cases of law has been expressly submitted to them. (a) [1] Upon granted. (a) Cornforth v. Geer, 2 Vern. 795. Metcalfe v. Ives, 1 Atk. 63. Ridout v. Pain, 1 Ves. 11. 2 Atk. 494. Anon. ib. 644. Price v. Williams, 3 Bro. C. C. 163. 1 Ves. jun. 355. Knox v. Simmons, 3 Bro. C. C. 358, 1 Ves. jun. 369. Morgan v. Mather, 2 Ves. jun. 15. Dick v. Milligan, ib. 23. 4 Bro. C. C. 117. Ching v. Ching, 6 Ves. 282. Young v. Walter, 9 Ves. 364, note to Nichols v. Chalie, 14 Ves. 271. summated by the giving of a deed and the payment of a part of the purchasemoney, it will not be rescinded on account of a deficiency in the quantity of the land conveyed; especially where the deficiency is very small. Ib. In cases where land is sold at a certain price by the acre, or foot, and it turns out that by the mutual mistake of the parties, there is a considerable deficiency in the quantity, equity sometimes interferes and relieves the purchaser from the payment of the deficiency. But in such cases, a slight variation in quantity will not afford a ground for the interference of the court to correct the mistake. Ib. Where appraisers are mutually appointed to estimate the value of property, their appraisement will not be set aside on the ground of mistake in their estimate, where no fraud or imposition is charged. Carter v. Treadwell 3 Story's Rep. 25. It is doubtful whether equity can relieve against a mistake committed by commissioners mutually appointed to settle the boundaries between two colonies or provinces, in a recent occurrence, except on the clearest proof of mistake. State of Rhode Island v. State of Massachusetts, 4 Howard, 591. Even if the mistake were proved, it would be difficult to disturb a possession of two hundred years, under an assertion of right, with the the claim admitted by the colony or province alleging the mistake, and by other colonies, in the most solemn form. Ib. The court will relieve against mistake, especially where it is produced by the misrepresentation of the adverse party. The State of Rhode Island v. The State of Massachusetts, 15 Peters, 233. But the title to relief may be forfeited by acquiescence or unreasonable delay. Ib. Equity will not relieve against a mistake in a sale of lands, in respect of the quantity conveyed, where a deed is executed and delivered by the vendor, and a mortgage given in return to secure the purchase-money, unless the proof be clear, direct, and positive. Marvin v. Bennett, 26 Wend. 169. Also to entitle the purchaser to relief in such case, the quantity must have constituted a condition of the sale as agreed upon by the parties. Ib. It is not enough that it may have operated as an inducement to the purchase, in respect of which the purchaser will be deemed to have assumed the risk, unless in relation to it the vendor be chargeable with fraud. Ib. Nor will relief be granted, if the purchaser, with ordinary vigilance before the completion of the contract, by viewing the premises, or properly settling the terms of the description, might have guarded against the alleged mistake. Ib. In Massachusetts the court has no jurisdiction, in equity, in cases of mere mistake. Gould v. Gould, 5 Met. Rep. 274. In Massachusetts, A. died intestate, leaving B. a son, and C. a daughter, his only lawful heirs, and D. an elder illegitimate son, who had always been recognized by A. as a lawful child, and had lived in A.'s family during his minority, and whose illegitimacy was not known nor suspected by the lawful heirs, nor shown to have been known by [1] A plain mistake on a question of law is a good ground of exception to the award. Kelley v. Johnson et al. 3 ib., 45. If an award discover on its this principle are founded the cases (too numerous to be here In what cases himself. D. claimed one third of A.'s real estate, and gave to B. a quit-claim deed of all his interest in the estate; for which B. gave him a promissory note. After D.'s death, B. took up the note, and gave one payable to D.'s widow, who was his executrix and residuary legatee, and afterwards paid that note in part, by transferring to the widow a note of J. which was payable to B.; J. afterwards took up that note and gave one to the widow payable to herself. B. subsequently discovered the illegitimacy of D. and filed a bill in equity against the widow of J. praying for a decree that the widow had no right in the last mentioned note, and that J. should pay the amount thereof to B.; and that the widow should give up the note to be cancelled. Held, that all the transactions set forth in the bill were founded on mistake; that no trust arose therefrom in favor of B. of which cognizance could be taken, under the Revised Statutes (81) and that the bill must be dismissed for want of jurisdiction. Ib. Money paid through mistake, by individuals, may be recovered back, where the mistake was either of law or of fact, or both, essentially beating upon and affecting the payment, &c. Gratz v. Redd, 4 B. Mon. Rep. 178. Vide 3 B. Mon. Rep. 513; 4 Dana, 309. agents, who are but trustees. The same rule applies to corporations and their The court will relieve from a mistake of law, as well as of fact. Lowndes v. Chisolm, 2 M'Cord's Ch. Rep. 445; Hopkin's ex'rs v. Mazyck, 1 Hill's Ch. Rep. 251; Drew v. Clark, Cook, 374; Fitzgerald v. Peck, 4 Litt. 125; Champlin v. Laytin, 1 Edwards, 467; Contra, Sims v. Lyle, 4 Wash. C. C. 301, 320; Hunt v. Rousmaniere's admr. 1 Peters, 15; Lyon v. Richmond, 2 Johns. Ch. Rep. 51; Lewis v. Cooper, Cook, 467; Jones v. Watkins, 1 Stewart, 81; Williams v. Hodgson, 2 Har. & Johns, 474. The court of chancery, in the exercise of its moral jurisdiction, will, upon the proof of fraud, mistake, or surprise, raise an equity by which the written agreement of the parties shall be rectified. It is essential, however, that such fraud, mistake, or surprise, should be alleged in the bill as the ground and object of the parol proof. Wesley v. Thomas, 6 Har. & Johns. 24. A party under a clear and unequivocal mistake of his legal rights, where such rights are of a doubtful character, will be relieved in equity. Lammat v. Bowley, 6 Har. & Johns. 500. An executor being sued on a bond of his testator of more than twenty years' standing, was advised by his counsel to rely on the presumption of payment arising from the length of time: and supposing such presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power. In consequence of evidence given by one of the jurors in the jury room, a verdict was found against him. He afterward obtained a new trial by applying to a court of equity, on the ground of mistake and accident. Price v. Fuqua, 4 Munf. 68. Distinction between ignorance and mistake of the law. The first is not susceptible of proof, and cannot, therefore, be relieved against; but mistake may be proved, and when proven, relief will be afforded. Hopkins' exrs. v. Mazyck, 1 Hill's Ch. Rep. 250. Equity will sometimes relieve in cases of mistake of law. Thus, where a party gave his note for more than he was legally bound to pay, under the mistaken advice of his counsel. Fitzgerald v. Peck, 4 Litt. 127. Where both parties to an agreement have acted upon a mistake, as to face some palpable mistake of law or fact operating greatly to the prejudice of either party it may be impeached. Bumpass v. Webb, 4 Porter's Rep. 65. granted. |