ignorance or mistake of facts, as well as of law; provided no fraud has been used to mislead and deceive the party executing the conveyance.1

§ 186. If a deed is drawn by accident or mistake to embrace property not intended by the parties, equity will construe the grantee to be a trustee, and will execute the trust by reforming the deed or by ordering a reconveyance. It would be against natural right to allow a person to hold property which he never intended to buy, and which has come to him by such mistake.2 But courts require the most full and satisfactory proof before they will vary by parol evidence the contract between the parties, as written and signed by them,3 and will not give relief unless the mistake

318; 5 De G., M. & G. 76; Gordon v. Gordon, 3 Swans. 463, 476; Stockley v. Stockley, 1 V. & B. 29; Bellamy v. Sabine, 2 Phill. 425; Stapilton v. Stapilton, 1 Atk. 10; 3 Lead. Ca. Eq. 684; Cann v. Cann, 1 P. Wms. 727; Persse v. Persse, 1 West, 110; 7 Cl. & Fin. 279; Cory v. Cory, 1 Ves. 19; Heap v. Tonge, 7 Eng. L. & Eq. 189; 9 Hare, 90; Leonard v. Leonard, 2 Ball & B. 171; Dunnage v. White, 1 Swans. 137; Harvey v. Cook, 4 Russ. 34; Jodrell v. Jodrell, 9 Beav. 45; Frank v. Frank, 1 Ch. Ca. 84.

1 Smith v. Pincombe, 10 Eng. L. & Eq. 50; 3 Mac. & G. 653; Groves v. Perkins, 6 Sim. 576; Hoge v. Hoge, 1 Watts, 163; Dunnage v. White, 1 Swans. 137; Evans v. Llewellyn, 1 Cox, 333; 2 Bro. Ch. 150; Townshend v. Stangroom, 6 Ves. 333; Chesterfield v. Janssen, 2 Ves. 155; Ormond v. Hutchinson, 13 Ves. 51; Henly v. Cook, 4 Russ. 34; Stainton v. Carson Co. 6 Jur. (N. s.) 360; Ashurst v. Mill, 7 Hare, 502; Lawton v. Campion, 18 Beav. 87; Bennett v. Merriman, 6 Beav. 360; Hogton v. Hogton, 15 Beav. 278; 11 Eng. L. & Eq. 134.

2 Exeter v. Exeter, 3 M. & Cr. 321; Lindo v. Lindo, 1 Beav. 496; Ramsden v. Hylton, 2 Ves. 304; Beaumont v. Bramley, T. & R. 52; Underhill v. Horwood, 10 Ves. 225; Canedy v. Marcy, 13 Gray, 373; Brown v. Lamphear, 35 Vt. 252; Green v. Morris, 1 Beasley, 170; Richardson v. Bleight, 8 B. Mon. 580; Whaley v. Eliot, 1 A. K. Marsh. 343; Belknap v. Scaley, 2 Duer, 570; Gray v. Woods, 4 Blackf. 432; Peters v. Goodrich, 3 Conn. 146; Oliver v. Ins. Co. 2 Curtis, 277; Tilton v. Tilton, 9 N. H. 385; Farley v. Bryant, 32 Me. 474; Loss v. Obry, 7 C. E. Green, 52.

8 Sawyer v. Hovey, 3 Allen, 331; Gillespie v. Moore, 2 Johns. Ch. 585, Andrews v. Essex Ins. Co. 3 Mason, 10; 1 Story's Eq. Jur. § 157.

is common to both parties,1 except the case is such that the parties may be restored to their original situation.2 But fraud on one party and mistake on the side of the other is a good cause for setting aside a transaction.3

§ 187. Lord Hardwicke, in his analysis of the various kinds of fraud, stated one species to be, "fraud apparent from the intrinsic value and subject of the bargain, such as no man in his senses, and not under delusion, would make on the one hand, and as no honest or fair man would accept on the other."4 The meaning of this is, that fraud may be proved by the inadequacy of the consideration paid for property by the purchaser on the one hand,5 or the consideration may be so extravagantly large on the other, as to show that the purchaser was imposed upon. It is to be observed, however, that the consideration alone, whether too large or too small, cannot of itself prove fraud in a transaction, for the reason that a mere voluntary conveyance, without any consideration, is good and valid between the parties. On the same ground mere inadequacy of consideration will not vitiate a deed, and so if a party, knowing that the considera

1 Andrews v. Essex Ins. Co. 3 Mason, 10; Bradford v. Romney, 30 Beav. 431.

2 Garrard v. Fanchell, 30 Beav. 445; Harris v. Pepperell, L. R. 5 Eq. 1. Bloodgood v. Sears, 64 Barb. 76; Welles v. Yates, 44 N. Y. 525.

4 Chesterfield v. Janssen, 2 Ves. 155; Harvey v. Mount, 8 Beav. 439.

139.

Ibid.; Rosevelt v. Fulton, 2 Cow. 129; McDonald v. Neilson, 2 Cow.

Cockell v. Taylor, 15 Beav. 103.

7 Pickett v. Loggon, 14 Ves. 215; Reynell v. Sprye, 8 Hare, 222; 1 De G., M. & G. 600; Howard v. Edgell, 17 Vt. 9; Osgood v. Franklin, 2 Johns. Ch. 1; 14 Johns. 527; Butler v. Haskell, 4 Des. 651; Erwin v. Perham, 12 How. 197; Judge v. Wilkins, 19 Ala. 765; McCormick v. Malin, 5 Blackf. 509; Delafield v. Anderson, 7 S. & M. 630; Farmers' Bank v. Douglass, 11 S. & M. 469; Robinson v. Robinson, 4 Md. Ch. 183; Powers v. Hale, 5 Foster, 145; Dun v. Chambers, 4 Barb. 376; Mann v. Betterly, 21 Vt. 326; Green v. Thompson, 2 Ired. Eq. 365; White v. Flora, 2 Overt. 426; Forde v. Herron, 4 Munf. 316; Holmes v. Fresh, 9

3

tion is inadequate, enters into the agreement with his eyes. open, he cannot have relief.1 It is only where some fraud is practised upon a party that the consideration of a conveyance is material.2 If it appears that a person intended to convey his property for a consideration reasonably proportionate to its value, but that in fact the consideration received was grossly inadequate, then a court of equity would infer that some fraud or deceit had been practised upon him; or as Lord Thurlow said, "where the inadequacy of the consideration is so gross and manifest that it is impossible to state it to a man of common sense without producing an exclamation at the inequality of it, the court will infer from that fact alone, that there must have been such imposition or oppression in the transaction, or such a want of common understanding in the party, as to amount to a case of fraud, from which no advantage or benefit ought to be derived by the other party."5 Other authorities say that courts will act on the fact alone of inadequacy of consideration when it is so gross and manifest as to shock the con

Miss. 201; Young v. Frost, 5 Gill, 287; Coster v. Griswold, 4 Edw. 364; Westervelt v. Matheson, 1 Hoff. 37; Davidson v. Little, 27 Pa. St. 251; Coles v. Trecothick, 9 Ves. 246; Moth v. Atwood, 5 Ves. 845; White v. Damon, 7 Ves. 35; Low v. Barchard, 8 Ves. 133; Griffith v. Spratley, 2 Bro. Ch. 179; Wood v. Abrey, 3 Madd. 423; Floyer v. Sherrard, Amb. 18; Stephens v. Bateman, 1 Bro. Ch. 22; Harrison v. Guest, 6 De G., M. & G. 424; 8 H. L. Cas. 481; Denton v. Donner, 23 Beav. 285; Eyre v. Potter, 15 How. 60; Chaires v. Brady, 10 Flor. 133.

1 Willis v. Jernegan, 2 Atk. 251.

2 Huguenin v. Baseley, 14 Ves. 273; Wormack v. Rogers, 9 Ga. 60; How v. Weldon, 2 Ves. 516; Mann v. Betterly, 21 Vt. 326.

8 Gwynne v. Heaton, 1 Bro. Ch. 8; Baugh v. Price, 3 Wilson, 320; Eyre v. Potter, 15 How. 60; Butler v. Haskell, 4 Des. 652; Barnett v. Spratt, 4 Ired. Eq. 171; Wright v. Wilson, 4 Yerg. 294; Juzan v. Toulmin, 9 Ala. 692.

178.

Gwynne v. Heaton, 1 Bro. Ch. 8; Hamet v. Dundass, 4 Barr.

Heathcote v. Paignon, 2 Bro. Ch. 175; Underhill v. Horwood, 10 Ves. 219; Ware v. Horwood, 14 Ves. 28; Stilwell v. Wilkinson, Jac. 282; Barnett v. Spratt, 4 Ired. Eq. 171.

science.1 This principle is loose enough, if it is a principle, and of course every case would depend upon its own facts and circumstances. Where there are suspicious circumstances connected with the fact of inadequacy of price, as where the parties stand in a fiduciary relation to each other, or one of them is in distress, or is ignorant,5 or is weak-minded and imbecile, inadequacy of consideration will become very pertinent, and oftentimes conclusive evidence that fraud and undue influence have been used to bring about a bargain advantageous to the one side and ruinous to the other.

§ 188. Immediately connected with this subject is the sale by an heir or reversioner of his expectancy or reversionary interest. It is said that "it is incumbent upon those who deal with an expectant heir, relative to his reversionary

1 Horsey v. Hough, 38 Md. 130; Coles v. Trecothick, 9 Ves. 246; Osgood v. Franklin, 2 Johns. Ch. 1; 14 Johns. 527; Gwynne v. Heaton, 1 Bro. Ch. 9; Underhill v. Horwood, 10 Ves. 209; Peacock v. Evans, 16 Ves. 512; Wright v. Wilson, 2 Yerg. 294; Deaderick v. Watkins, 8 Humph. 520; Stilwell v. Wilkinson, Jac. 280; Copis v. Middleton, 2 Madd. 409; Howard v. Edgell, 17 Vt. 9; Butler v. Haskell, 4 Des. 652; Eyre v. Potter, 15 How. 60; Gist v. Frazier, 2 Litt. 118; Seymour v. Delancey, 6 Johns. Ch. 222; Juzan v. Toulmin, 9 Ala. 692; James v. Morgan, 1 Lev. 111; Rice v. Gordon, 11 Beav. 215; Booker v. Anderson, 35 Ill. 66.

2 Gibson v. Jeyes, 6 Ves. 273; Warfield v. Ross, 38 Md. 85.

8 Herne v. Meeres, 1 Vern. 456; Gibson v. Jeyes, 6 Ves. 266; Shaeffer v. Sleade, 7 Blackf. 178; Brooke v. Berry, 2 Gill, 83; Wright v. Wilson, 2 Yerg. 294; Butler v. Haskell, 4 Des. 680.

Cockell v. Taylor, 15 Beav. 103; Warfield v. Ross, 38 Md. 85.

5 Herne v. Meeres, 1 Vern. 456; Pickett v. Loggon, 14 Ves. 215; Murray v. Palmer, 2 Sch. & Lef. 477; Gwynne v. Heaton, 1 Bro. Ch. 1; Wood v. Abrey, 3 Madd. 417; McKinney v. Pinkard, 2 Leigh, 149; Gasque v. Small, 2 Strob. Eq. 72; Esham v. Lamar, 10 B. Mon. 43; Butler v. Haskell, 4 Des. 680; Cookson v. Richardson, 69 Ill. 137.

6 Clarkson v. Hanway, 2 P. Wms. 203; Gartside v. Isherwood, 1 Bro. Ch. 558; Stanhope v. Toppe, 2 Bro. P. C. 183; McArtee v. Engart, 13 Ill. 242; Wormack v. Rogers, 9 Ga. 60; How v. Weldon, 3 Ves. 517; Addis v. Campbell, 4 Beav. 401; Holden v. Crawford, 1 Atk. 390; Mann v. Betterley, 21 Vt. 326; Crane v. Conklin, Saxt. 346; Brooke v. Berry, 2 Gill, 83; Rumph v. Abercrombie, 12 Ala. 64.

interest, to make good the bargain; that is, to be able to show that a full and adequate consideration was paid. In all such cases the issue is upon the adequacy of the price. No proof of fraud is necessary; and the relief is given upon general principles of mischief to the public, without requiring particular evidence of actual imposition."1 Such a purchase is a constructive fraud, and the purchaser, if a stranger, will be compelled to account and to give up the bargain, if found to be advantageous. A sale by an heir will not be supported against him unless it is perfectly fair in every respect, and beyond suspicion, and for an adequate price.3 The burden is upon the purchaser to show the fairness of the transaction and the sufficiency of the consideration, and not upon the heir to impeach either the one or the other;' and it is said that it is immaterial that the heir is of mature age. In this country the rule may be stated with still more severity, that the sale, by an heir, of his expectancy during the life of the ancestor, is contrary to public policy and is void, unless such sale is assented to by the ancestor, and sup

5

1 Sir Wm. Grant, in Gowland v. De Faria, 17 Ves. 20.

2 Jenkins v. Pye, 12 Pet. 258; Call v. Gibbons, 3 P. Wms. 290; Barnardiston v. Lingood, 2 Atk. 133; Gwynne v. Heaton, 1 Bro. Ch. 10; Walmesley v. Booth, 2 Atk. 28.

Knott v. Hill, 1 Vern. 167; Westerfield v. Janssen, 2 Ves. 125; 1 Lead. Ca. Eq. 428-494, Eng. and Am. notes; Bawtree v. Watson, 3 M. & K. 339; Portmore v. Taylor, 4 Sim. 182; Peacock v. Evans, 16 Ves. 512; Newton v. Hunt, 5 Sim. 54; Foster v. Roberts, 29 Beav. 467; Talbot v. Staniforth, 1 John. & H. 484; Jones v. Ricketts, 31 Beav. 130; Salter v. Bradshaw, 26 Beav. 161; King v. Hamlet, 4 Sim. 223; 2 M. & K. 456; Denton v. Donner, 23 Beav. 285; Bury v. Oppenheim, 26 Beav. 594; Hannah v. Hodgson, 30 Beav. 19; St. Albyn v. Harding, 27 Beav. 11; Nesbitt v. Berridge, 32 Beav. 282; Perfect v. Lane, 31 L. J. Ch. 489; Edwards v. Burt, 2 De G., M. & G. 55; Aldborough v. Frye, 7 Cl. & Fin. 436.

4 Gowland v. De Faria, 17 Ves. 24; Coles v. Trecothick, 9 Ves. 246; Davis v. Marlborough, 2 Swans. 141; Portmore v. Taylor, 4 Sim. 209; Shelley v. Nash, 3 Madd. 236; Nimmo v. Davis, 7 Tex. 260; Poor v. Hazleton, 15 N. H. 564.

Davis v. Marlborough, 2 Wils. 146; Evans v. Cheshire, Belt, Supp. 305; Addis v. Campbell, 4 Beav. 401.