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There is a late case' in New York, which is to be noticed. It came first before vice chancellor McCoun, who thought the authorities sufficient to establish the position, that a contract entered into, as he considered this to have been, under a mutual misconception of legal rights, amounting to a mistake of law, in both parties, and going to defeat the true end of the contract, is as liable to be set aside as a contract founded on mistake of facts. The chancellor' affirmed the decree of the court below, but he could not regard the correctness of the decision as turning on the question, whether or not the court could relieve against a mistake of law merely:-a point on which he did not “wish to be understood as expressing any opinion, one way or the other.” The case was afterwards carried to the court of errors,” where the decree was again affirmed, unanimously. Mr. justice Bronson, who delivered an opinion in the case, considered the parties as having contracted under a mutual mistake, which, on the part of the appellants, he regarded as a mistake of law, but as a mistake of fact on that of the appellee, who was the party seeking relief. He went into a discussion, at large, as to the effect of mistakes of law, and was very decided in the opinion, that such mistakes are beyond all relief. Mr. senator Paige indorsed the doctrine of the vice-chancellor, and he could “not see any good sense in the distinction of granting relief against mistakes of fact and refusing it in cases of acknowledged mistakes of law.” These two were the only opinions delivered in the case, and how many of the court adopted the doctrine of the one, and how many that of the other, does not appear. The marginal note has it, “whether relief will be granted where there is mere mistake of law, quare.” At all events, the whole course of the case, to our apprehension,

* Champlin v. Laytin, 1 Edw. Ch. 467. * 6 Paige, 189. 3 18 Wend. 407.

shows a very decided falling off from the high and imperative language, which the courts of New York held in some of the earlier cases. In Pennsylvania there is a case, where a party, having deposited in the bank a check which proved to be forged, afterwards, on being informed of the fact, said, “if the check is a forgery, it is no deposit.” Chief justice Shippen held this to be “the expression of an opinion of what he should be obliged to allow, rather than of what he was willing to allow, and being made under a mistake of his right, he was not bound by it,” and he cited the case of Penn v. lord Baltimore as conclusive to the point. The Maryland reports furnish a strong authority on the same side.” There certain land had been devised to Bowley, who well knew of the devise, but had never supposed he became entitled to the land till the happening of certain contingencies mentioned in the will, whereas, in fact, the legal effect of the will was, to give him the land absolutely. A part of this land had been sold to Lammott, with the knowledge of Bowley. Many years afterwards, the true construction of the will having been ascertained, the defendant brought an action of ejectment for the land thus sold, and the plaintiff filed a bill for an injunction. The question to be decided, the court said, was simply whether a man who has a title to land, but who is ignorant of his right, forfeits his title by concealing his right, when he knows that another is about to purchase the land of a third person. They held that he did not; and they thought it clearly the true doctrine, and well supported by authorities, that a person acting under a plain and acknowledged mistake of his legal rights, should not thereby be deprived of those rights. In Kentucky it is regarded as settled doctrine, that relief may be granted against mistakes of law. In Fitzgerald v. Peck' the defendant sold land, and took in payment three notes, one of which he passed directly to the plaintiff, to whom the two others were sold by a third person, and all for considerably less than the sum expressed in them. The defendant having failed to make out a title to the land, was obliged to pay the notes. A part of the amount he paid in cash, and he gave his note for the residue, as computed by the counsel of the parties, and covering the full sum stated in the notes. Judgment was recovered on this note, and the defendant asked for an injunction, which was perpetuated as to all beyond the sums actually paid by the plaintiff for the notes and costs of the suit. The ground on which the court put the defendant's right to relief, was that of mistake as to what he was really bound to pay. In a very late case” the question as to the effect of mistakes of law was considered, at large, on general principles, and the conclusion at which the court arrived was, that if a man, without any other motive or consideration than an erroneous opinion respecting his legal rights and obligations, release a right, pay money, or undertake to do any act, he should be held entitled to relief equally as if he had acted under a mistake of fact, and for the same reason, namely, that the contract was not such as the parties, or one of them at least, really contemplated. “And such,” they said, “we understand to be the rational and consistent doctrine of the common law established in Kentucky.” In South Carolina, where the question has been oftener discussed than in any other state except New York, the courts have twice acted upon, and in a third case deliberately affirmed the doctrine, that mistakes of law are a proper subject for relief. In the first case that came before them,” the defendant had sold a wharf, and for a part of the purchase money had taken seven bonds, to secure the payment of which he held a mortgage of one half the wharf. Two of these bonds, on which the plaintiffs were sureties, the defendant assigned, together with so much of the mortgage as related to them, and the plaintiffs were obliged to pay the money due on them to the assignee. The defendant recovered judgment on the five other bonds, and the mortgaged premises were sold under the judgment, without any foreclosure of the mortgage, and were purchased by the defendant. Both he and his counsel meant to sell the fee simple of the property, and the sheriff so offered the premises for sale. In fact, only the equity of redemption passed by the sale. The plaintiffs filed their bill, claiming to have the proceeds of the mortgaged property applied to pay them in proper proportion, and insisting that the premises, in the defendant's hands, were liable to them as mortgage creditors; —thereby claiming to hold the defendant accountable for the sum he had bid for the property, under the supposition that he was buying the fee, yet allowing him only the equity of redemption. The court held the defendant not bound by the purchase, the effect of the sale being to pass a less interest than that which he believed he was purchasing. Here the question, as to the effect of a mistake of law, was directly before the court, and was the very point on which the case was decided. The court considered it “well established, that relief is given in cases where the mistake has been clearly one of law; ” and they thought “the authorities relied on put the matter beyond all doubt, if indeed it could be doubted at this day.” " The next case much resembled that of Bingham v. Bingham. The defendant had purchased land which was already his under a devise. But the heir at law interposed a claim, and the defendant was advised by counsel, that he could not

1 Levy v. Bank of United States, 1 Bin. 27. * Lammott v. Bowley, 6 Har. & Johns. 500.

1 4 Litt. 125. * Underwood v. Brockman, 4 Dana, 309. * Lowndes v. Chisolm, 2 McCord, Ch. 455.

* Lawrence v. Beaubien, 2 Bail. 623.


hold the real estate, because, when the will was made, he was not a naturalized citizen. The defendant, desiring to become the owner of the land in question, procured the heir at law to execute a deed of assignment of all his interest in his father's real estate, in favor of the defendant, who, in consideration thereof, executed a bond, which was afterwards assigned to the plaintiff, and on which this action was brought. The case was very learnedly and elaborately argued on both sides. Mr. justice Johnson, in delivering the opinion of the court, said he had no hesitation in coming to the conclusion, that contracts founded on a plain and palpable mistake of the law, from a known state of facts, and capable of proof, ought not to be enforced; and he thought there was no difference in principle between the cases of recovering back money, and of enforcing a contract founded on a mistake of law. The mistake here was the precise point on which the case turned; and the verdict having been against the defendant, a new trial was granted. In a subsequent case' the chancellor, in the court below, had thrown out some remarks calculated to shake the doctrine of the two earlier cases. When this case came before the court of appeals, the decree was affirmed, but the court thought it fitting to use the opportunity to express their decided adherence to the doctrine in question. Mr. justice Johnson, who delivered the opinion of the court, observed that Lawrence v. Beaubien was decided on much consideration, and the more he had reflected on it since, the more he was confirmed in its correctness. We have now noticed all the authorities we have met with, having any material bearing upon the subject, on the one side and on the other. That all the cases can be reconciled with each other, may not be pretended. There is much strong language used by distinguished judges, on both sides.

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