only to cases where there has been a studied suppression or concealment of the facts by the other side which would amount to fraud, but also to many cases of innocent ignorance and mistake on both sides.1 So if a party has bona fide entirely forgotten 1 Ignorance of facts and mistake of facts are not precisely equivalent expressions. Mistake of facts always supposes some error of opinion as to the real facts; but ignorance of facts may be without any error, but result in mere want of knowledge or opinion. Thus a man knowing that he has some interest in a parcel of land may suppose it to be a life estate, when it is a fee. upon which equity has relieved against the want of livery or of enrolment or other ceremony of the common law or statute, not positively essential. Nor will equity affix a seal to a voluntary instrument, though necessary and agreed upon. Eaton v. Eaton, 15 Iowa, 259. On the other hand attaching a seal to a partnership note by mistake will be corrected. Lyman v. Califer, 64 N. Car. 572. Discharge of a mortgage or lien. Bruce v. Bonney, 12 Gray, 107; French v. DeBow, 38 Mich. 708. Allowing judgment to go by default on a mistaken cause of action. Young v. Morgan, 9 Neb. 169. Satisfaction of an execution. National Bank v. Rogers, 22 Minn. 224. Mistake in the date of a policy of insurance. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199. And in the name of the person intended to be insured. Keith v. Globe Ins. Co., 52 Ill. 518. Misdescription of premises in a policy of insurance. Home Ins. Co. v. Meyer, 93 Ill. 271. Misdescription of property in a bill of sale of personalty. Menominee Co. v. Langworthy, 18 Wis. 444. Omission of interest clause from a promissory note. Gump's Appeal, 65 Penn St. 476. Omission of a necessary indorsement of a note. Hughes v. Nelson, 29 N. J. Eq. 547, treating the title in such a case as having passed in equity. Giving a guardian bond to a judge out of office. Hall v. Hall, 43 Ala. 488. Mistake of an executor, administrator, or other person bound to account, in charging too much against himself in making up his accounts. Brandon v. Brown, 106 Ill. 519. Omission of the name of a trustee in a trust deed may be supplied, especially where a blank was left with authority to fill. Burnside v. Wayman, 49 Miss. 356; Exchange Bank v. Russell, 50 Mo. 551. So of the character in which by mistake a magistrate has taken an acknowledgment of an instrument. Simpson v. Montgomery, 25 Ark. 365. Mistake of a magistrate in failing to mark the name of counsel to the defence of a suit resulting in judgment against him. Brewer v. Jones, 44 Ga. 71. Mistake of a trivial nature in the time for making a tender to save a forfeiture. Atkins v. Chilson, 11 Met. 112. Generally mistake of a scrivener will be corrected. Huss v. Morris, 63 Penn. St. 367; Van Douge v. Van Douge, 23 Mich. 321; Hartford Ore Co. v. Miller, 41 Conn. 112; Drury v. Hayden, 111 U. S. 223; Elliott v. Sackett, 108 U. S. 133; Clemens v. Drew, 2 Jones, Eq. 314; Stone v. Hale, 17 Ala. 557; Wilcox v. Lucas, 121 Mass. 21; Allen v. Brown, 6 R. I. 386; Sowler v. Day, 58 Iowa, 252. But if a term or condition was omitted purposely, then it matters not that there was an oral understanding that the term or condition should be complied with; equity will not grant. relief. Andrew v. Spurr, 8 Allen, 412; Betts v. Gunn, 31 Ala. 219. the facts he will be entitled to relief, because under such circumstances he acts under the like mistake of the facts as if he had never known them. Ignorance of foreign law is deemed to be ignorance of fact; because no person is presumed to know the foreign law, and it must be proved as a fact.2 (a) 141. The rule as to ignorance or mistake of facts entitling the party to relief has this important qualification, that the fact must be material to the act or contract; that is, that it must be essential to its character, and an efficient cause of its concoction. For though there may be an accidental ignorance or mistake of a fact, yet if the act or contract is not materially affected by it, the party claiming relief will be denied it. This distinction may be easily illustrated by a familiar case. A buys an estate of B, to which the latter is supposed to have an unquestionable title. It turns out upon due investigation of the facts, unknown at the time to both parties, that B has no title (as if there be a nearer heir than B, who was supposed to be dead, but is in fact living); in such a case equity would relieve the purchaser and rescind the contract. But suppose A were to sell an estate to B, whose location was well known to each, and they mutually believed it to contain twenty acres, and in point of fact it contained only nineteen acres and three fourths of an acre, and the difference would not have varied the purchase in the view of either party, in such a case the mistake would not be a ground to rescind the contract.* 142. In cases of mutual mistake going to the essence of the contract it is by no means necessary that there should be any That is an error or mistake. But if he is ignorant that there exists any such land, and that he had any title to it, that very ignorance may lead him to form no opinion whatever on the subject. It may be a case of sheer negation of thought. The phrases are however commonly used as equivalent in legal discussions. Canal Bank v. Bank of Albany, 1 Hill, N. Y. R. 287. 1 Kelly v. Solari, 9 Mees. & Wels. 54, 58. 2 Leslie v. Bailie, 2 Younge & Coll. N. R. 91, 96; Haven v. Foster, 9 Pick. R. 113, 130; Raynham v. Canton, 3 Pick. R. 293; Kenny v. Clarkson, 1 Johns. R. 385; Trith v. Sprague, 14 Mass. R. 455; Consequa v. Willings, 1 Peters, Circ. R. 229. 8 See 1 Evans, Pothier on Oblig. Pt. 1, ch. 1, art. 9, n. 17, 18; Bingham v. Bingham, 1 Ves. 126; 1 Fonbl. Eq. B. 1, ch. 2, § 7. See also Calverley v. Williams, 1 Ves. jr. 210, 211. See Smith v. Evans, 6 Binn. 102; Mason v. Pearson, 2 John. R. 37. (a) McCormick v. Garnett, 5 De G. M. & G. 278; Haven v. Foster, 9 Pick. 112; King v. Doolittle, 1 Head, 77, 84. presumption of fraud. On the contrary equity will often relieve, however innocent the parties may be. Thus if one person should sell a messuage to another, which was at the time swept away by a flood or destroyed by an earthquake without any knowledge of the fact by either party, a Court of Equity would relieve the purchaser upon the ground that both parties intended the purchase and sale of a subsisting thing, and implied its existence as the basis of their contract. It constituted therefore the very essence and condition of the obligation of their contract.1(a) So if a person should execute a release to another party upon the supposition founded in a mistake that a certain debt or annuity had been discharged, although both parties were innocent, the release would be set aside upon the ground of the mistake.2(b) The civil law holds the same principle. Domum emi, cum eam et ego et venditor combustam ignoraremus. Nerva, Sabinus, Cassius, nihil venisse, quamvis area maneat, pecuniamque solutam condici posse, aiunt.'8 143. The same principle will apply to all other cases where the parties mutually bargain for and upon the supposition of an existing right. Thus if a purchaser should buy the interest of the vendor in a remainder in fee, expectant upon an estate tail and the tenant in tail had at the time, unknown to both parties, actually suffered a recovery, and thus barred the estate in remainder, a Court of Equity would relieve the purchaser in regard to the contract purely upon the ground of mistake.* 143 a. It will make no difference in the application of the principle, that the subject-matter of the contract be known to 1 Hitchcock v. Giddings, 4 Price, R. 135, 141; s. c. Daniel's R. 1; 2 Kent, Comm. Lect. 39, p. 469 (2d edit.). But see Sugden on Vendors, p. 237, and note 1, 7th edition; Stent v. Bailis, 2 P. Will. 220. 2 Hone v. Brether, 12 Simons, R. 465. 8 Dig. Lib. 18, tit. 1, 1. 57; 2 Kent, Comm. Lect. 39, pp. 468, 469 (2d edit.); Grotius De Jure Belli, B. 2, ch. 11, § 7. If the house were partially burnt, the civilians seemed to have entertained different opinions, whether the vendor was bound by the contract, having an abatement of the price or allowance for the injury, or had an election to proceed or not with the contract, with such an abatement or allowance. See 2 Kent, Comm. Lect. 39, p. 469 (4th edit.); Pothier De Vente, n. 4. Grotius has made some sensible remarks upon the subject of error in contracts, Grotius De Jure Belli, B. 2, ch. 11, § 6. 4 Hitchcock v. Giddings, 4 Price, R. 135; s. c. Daniel's R. 1. (a) Colyer v. Clay, 7 Beav. 188. (b) Fane v. Fane, L. R. 20 Eq. 698. both parties to be liable to a contingency which may destroy it immediately; for if the contingency has, unknown to the parties, already happened, the contract will be void, as founded. upon a mutual mistake of a matter constituting the basis of the contract. Thus if a life estate should be sold, and at the time of the sale the estate is terminated by the death of the party in whom the estate is vested, and that fact is unknown to both parties, a Court of Equity would rescind the contract upon the ground of a mutual mistake of the fact which constituted the basis of the contract. So if a horse should be purchased, which is by both parties believed to be alive, but is at the time of the purchase in fact dead, the purchaser would upon the same ground be relieved by rescinding the contract if the money was not paid, and if paid, by decreeing the money to be paid back.2 143 b. The same principle has been applied to the case of a contract between two persons whereby one contracted for a large sum as a contingent compensation for his services in prosecuting a claim of the other against a foreign government for an illegal capture if it should be successful, and at the time of the contract the claim had, unknown to both parties, been allowed by the foreign government with a stipulation for a due payment thereof; for the very basis of the contract was future services to be rendered in prosecuting the claim, and unless such services were rendered there was no consideration to support it.3 144. The same principle will apply to cases of purchases where the parties have been innocently misled under a mutual mistake as to the extent of the thing sold. Thus if one party thought that he had bona fide purchased a piece of land as parcel of an estate, and the other thought he had not sold it under a mutual mistake of the bargain, that would furnish a ground to set aside the contract; because (as has been said) it is impossible to say that one shall be forced to give that price for part only which he intended to give for the whole, or that the other shall be obliged to sell the whole for what he intended to be the price of part only.1 144 a. But here the nature of the purchase often constitutes a material ingredient. Thus if a purchase is made of a thing in 2 Ibid. 1 Allen v. Hammond, 11 Peters, R. 71. 8 Allen v. Hammond, 11 Peters, R. 63, 71 to 73. VOL. I.-11 gross, as for example of a farm, as containing in gross by estimation a certain number of acres (such a sale is called in the Roman law a sale per aversionem) by certain boundaries; then if the transaction be bona fide, and both parties be equally under a mistake as to the quantity but not as to the boundaries, the sale will be binding on both parties, whether the farm contain more or fewer acres.1 (a) 145. It is upon the same ground that a Court of Equity proceeds where an instrument is so general in its terms as to release the rights of the party to property to which he was wholly ignorant that he had any title, and which was not within the contemplation of the bargain at the time when it was made. In such cases the court restrains the instrument to the purposes of the bargain, and confines the release to the right intended to be released or extinguished.2 146. It is not however sufficient in all cases to give the party relief that the fact is material, but it must be such as he could not by reasonable diligence get knowledge of when he was put upon inquiry. For if by such reasonable diligence he could have obtained knowledge of the fact, equity will not relieve him, since that would be to encourage culpable negligence. Thus if a party has lost his cause at law from the want of proof of a fact which by ordinary diligence he could have obtained, he is not relievable in equity; for the general rule is that if the party becomes remediless at law by his own negligence, equity will leave him to bear the consequence.3 (6) 1 Morris Canal Co. v. Emmatt, 9 Paige, R. 168; Stebbins v. Eddy, 4 Mason, R. 414; Post, § 195. See Dig. Lib. 18, tit. 6, 1. 35, § 5. 2 Farewell v. Coker, cited 2 Meriv. 352; Ramsden v. Hylton, 2 Ves. 304. 3 1 Fonbl. Eq. B. 1, ch. 3, § 3; Penny v. Martin, 4 John. Ch. R. 566. The rule of the civil law is the same. 'Sed facti ignorantia ita demum cuique non nocet, si non ei summa negligentia objiciatur. Quod, enim si omnes in civitate sciant, quod ille solus ignorat? Et recte Labeo definit, scientiam neque curiosissimi neque negligentissimi hominis accipiendam; verum ejus, qui eam rem diligenter inquirendo notam habere possit.' Dig. Lib. 22, tit. 6, 1. 9, § 2; Pothier, Pand. Lib. 22, tit. 6, § 4, n. 11. In the late case of Bell v. Gardiner, 4 Mann. & Granger, 11, 24, it was held that at law a promise to pay a note under ignorance of facts, but where the party had the means of knowledge, and might have made inquiry, did not bind him. The same point was decided in Kelly v. Solari, 9 Mees. & Welsb. 54, and Lucas v. Worswick, 1 Mood. & Rob. (a) See Noble v. Googins, 99 Mass. 231; note to § 140, at pp. 156, 157. (b) See note to § 140, at p. 154. |