McMasters, which had been incurred by plaintiff and one Thum, the original holders of said option; and afterwards the corporation paid a claim for labor on the mine pending the option, which claim was estimated at $1,500, but the amount actually paid thereon to Martin was $2,127, paid by the corporation through plaintiff, its superintendent. The corporation, in November, 1885, out of its net earnings, refunded to the contributors the $6,000 paid to Chambers, and the $2,000 advanced as aforesaid, of which the plaintiff received $2,000, the portion advanced by him. The advances and loan thus repaid, and debts assumed and paid by the corporation, amount to $14,127, leaving the sum of $50,000 as the actual outlay by plaintiff and the other purchasers of the mine.

"(7) Of the $50,000 so paid by the purchasers the plaintiff paid one-fourth, or $12,500, (using for that purpose the $5,000 delivered to him by defendant.) "(8) The actual original cost of the 25,000 shares of stock was 50 cents per

share.

"(9) When the corporation was about to be organized the plaintiff claimed that the cost of stock was 62 cents per share, and that he was entitled to subscribe for and hold 17,000 shares, and the defendant only 8,000 shares, but there was no agreement or settlement between defendant and plaintiff as to the claim, and the matter was left for future adjustment by plaintiff and defendant.

"(10) About the month of December, 1885, defendant, at request of plaintiff, delivered to plaintiff 500 shares of stock, to enable the latter to fill a sale, and 25 shares which plaintiff desired to give to another person. This stock was delivered to plaintiff subject to the adjustment of their stock account.

"(11) The parties never agreed upon the cost of the stock. Plaintiff demanded 1,475 shares of stock from defendant, but defendant refused to comply, and plaintiff brought this action. After this, and before answering, defendant demanded of plaintiff the return of the 525 shares delivered as aforesaid, which were refused by plaintiff.

"(12) The value of said stock, when the action was brought, and when defendant made his said demand, was and is now three dollars per share." As conclusions of law the court finds:

"(1) That the plaintiff was entitled to subscribe for and hold 15,000 shares of said stock, and defendant was entitled to subscribe for and hold 10,000 shares.

"(2) That plaintiff is not entitled to recover in this action, but the defendant is entitled to judgment against the plaintiff.

"(3) That on his counter-claim the defendant is entitled to recover from the plaintiff the value of 525 shares of said stock, viz., $1,575, together with his costs to be taxed."

Judgment was rendered accordingly, and, after motion for new trial, the plaintiff appealed to this court from the judgment and order denying the motion for new trial.

The only question raised in this court by the appellant is that the pleadings and findings of fact do not warrant the judgment, but that, upon the facts found, the judgment in favor of defendant should be set aside, and judgment rendered for the plaintiff thereon for the amount of his claim. We think that the findings do not warrant the claim of the plaintiff, but that they are conclusive against him. We think it sufficient to recall the fact that the findings expressly determine, as matter of fact, that the cost of said property to plaintiff and the other purchasers was $50,000, and "that the original cost of the 25,000 shares of stock was fifty cents per share," and that there was never any agreement between the parties as to the cost or distribution of said shares between them, but that it was left to the future adjustment of their stock account under the contract. It is contended by the plaintiff that the term "original cost" in the contract should be construed to mean its entire cost to v.13p.no.6-28

plaintiff, and that the findings show that its cost was more than 50 cents per share. The findings of fact go upon the idea that the advances by plaintiff over 50 cents per share were not a part of the cost, but that they were loans made by plaintiff to the corporation, and that the plaintiff so treated it himself. If it was not a loan, then it was a gross fraud upon defendant and other holders of stock to have it refunded to him as such. We have no doubt that the term "original cost, as used in said contract, was intended by the parties to mean its cost to the plaintiff; but advances or loans made to the corporation which the plaintiff has treated, and had refunded to him by the corporation out of its property as such, cannot be regarded as a part of such cost. The plaintiff cannot use it for the double purpose of depleting the treasury and divisible assets of the association, and at the same time use it as a charge to the holders of stock as a part of its cost. We think it was proper for the court to leave him where he had placed himself in the transaction, and estop him from charging such loans to defendant as a part of the cost of the stock. The judgment and order appealed from should be affirmed, with costs to defendant.

LANE, C. J., and BOREMAN, J., concur.

(14 Or. 542)

BALDOCK and another v. JOHNSON.

(Supreme Court of Oregon. March 7, 1887.)

EQUITY-FRAUD BY PARENT-CANCELLATION OF DEED.

Equity will interfere to set aside a conveyance of real property to a parent made without consideration by a child, who, in total ignorance of her estate in the property, is misled into making such conveyance by the misrepresentations of the parent seeking to take advantage of it.

Appeal from Baker county.

Wm. M. Ramsey and Glenn O. Holman, for appellants. respondent.

Zera Snow, for

STRAHAN, J. The substance of the complaint in this suit is as follows: That on the fifth day of November, 1884, plaintiffs executed and delivered to defendant a quitclaim deed to certain real property therein described as situate in Baker and Union counties, and that said deed was duly recorded; that it purports on its face to be for and in consideration of one dollar and other valuable considerations paid by said grantee to plaintiffs; that plaintiffs were induced to execute said conveyance by false representations of the defendant; that it was necessary to execute the same to enable the defendant to make a final settlement of her accounts in the estate of Ahira Johnson, deceased, of which the defendant was the administratrix in conjunction with one Thomas Keating, and the further false representation by the defendant that the execution of said conveyance did not affect plaintiffs' right in said land so conveyed; that at the time of said conveyance plaintiffs were ignorant of the facts concerning the condition of said estate, and of their rights in the premises; that each of the plaintiffs had full confidence in the truthfulness of said statements of the defendant, who is the mother of the plaintiff Elizabeth Baldock, and relied upon their truthfulness, and in ignorance of their rights, and the falsity of such statements, and of the effect of such instrument, they executed the same; that if such statements had not been made, or had the plaintiffs known their rights in the premises, they would not have executed said conveyance; that said representations were false, and the said defendant well knew they were false at the time they were made to plaintiffs; that said representations were untrue in this: That it was not necessary in the settlement of said estate that said conveyance should be executed, as plaintiff (defendant) well knew; that said deed did affect the rights of plaintiffs in this:

That one Ahira Johnson was at the time of his death seized in fee of the lands described in said conveyance; that before the execution of said deed the said Ahira Johnson died intestate in the state of Oregon; that at the time of his death he left surviving him, as his only heir, the defendant, who was his wife, and one Harry A. Johnson, an infant son of the defendant and said Ahira Johnson, deceased; that after said Ahira Johnson's death, and before the execution of said deed, the said Harry A. Johnson died intestate, and left no heirs at law except the defendant, who was his mother, and one Charles A. Herring, and the plaintiff Elizabeth Baldock, who were brother and sister of the half blood to said Harry A. Johnson, deceased; that said plaintiff Elizabeth Baldock was at the date of the execution of said deed, and is now, entitled to an undivided one-third of said lands in fee, and that said deed purports to convey to the defendant all of the plaintiff's right and interest in said land, and that the value of said lands at the time of said conveyance was $10,000. The answer denied the material allegations of the complaint, and upon the issues thus formed a trial was had, which resulted in a decree dismissing the suit, from which the plaintiffs have appealed to this court.

Upon the trial here the following facts were substantially admitted: That Ahira Johnson died intestate in Baker county, Oregon, about the year and that at the time of his death he was seized in fee of the real property in controversy; that previous to his death the said Ahira Johnson had intermarried with the defendant, and that Harry A. Johnson was born of said marriage, and that said Harry A. Johnson died intestate in Baker county, Oregon, about August 7, 1884; that said Harry A. Johnson was the only heir at law of said Ahira Johnson, and that said Harry A. left surviving him the plaintiff Elizabeth Baldock, and one Charles Herring, who are the children of the defendant, Samantha Johnson, by a former marriage, and that they are brother and sister of the half blood of the said Harry A. Johnson; that said Harry A. Johnson was an infant at the time of his death, was never married, and left surviving no other heirs at law except the said Elizabeth Baldock, Charles Herring, and his mother, Samantha Johnson, the defendant.

From the evidence taken in this cause, and submitted upon the trial, the court finds that on the fifth day of November, 1884, the plaintiff, Elizabeth Baldock, without any consideration whatever, made, executed, and delivered to the defendant a quitclaim deed of all her right, title, interest, and estate in the real property in controversy, which interest was at the time of the value of $1,666.66; that at the time of such conveyance the plaintiff Elizabeth was of about the age of seventeen years, and had been married less than one year, and that both of the plaintiffs then resided with the defendant at her home in Baker county; that, for the purpose of inducing the plaintiff Elizabeth to execute and deliver said deed, the defendant represented to her, as well as to her husband, Fred Baldock, that she wished them to execute a quitclaim deed to her so as to enable her to get her business out of Mr. Keating's hands, who was with defendant administrator of the estate of Ahira Johnson, deceased, and for the purpose of enabling her to manage her own business, and for the purpose of keeping Mr. Johnson's folks from coming in and taking her property; that defendant also represented to said Elizabeth, before the execution of said deed, and for the purpose of inducing her to sign the same, that she, the said plaintiff, had no interest in said real property, and that it all belonged to the defendant, and that the plaintiff did not know when she signed said deed that she had any interest in said real property, or that she was conveying it away; but that she obeyed the commands and requests of her mother, the defendant, as to the execution of said deed, without any knowledge as to its legal effect, or the purpose the defendant had in procuring its execution. The defendant, Samantha, has not in any way attempted to explain her purpose in procuring said deed, or by any evidence sought to justify it. So far as appears, it was a deliberate attempt on her part to obtain plaintiff's interest in

this land without paying anything whatever for it. Her claim that she had offered or agreed to give the plaintiff a span of horses cannot alter the case. The highest value any witness places on them is $160, and if such an agreement had been made it could not be allowed to stand under the circumstances here disclosed. The making of such an agreement would be fraudulent as between the parties.

It is not quite clear whether the gravamen of this suit is fraud or mistake. The complaint contains some facts which are proper and material under either view; but, inasmuch as no objection to the pleading appears to have been made in the court below, it is not necessary to stop to consider it, if it contains facts which would authorize a decree. It is difficult to perceive upon what principle of law the decree in this case can be sustained. The plaintiff has parted with her property, and has received nothing whatever in return. It is not a case of inadequate consideration, but one where a consideration is totally wanting. The acknowledgment, however, of a consideration in the deed, would be sufficient in law to sustain it, if it were not open to be questioned on other grounds; but where a party acts under a total misconception of his legal rights, or the extent of his interest or estate in the thing granted, or where his confidence is imposed upon to his injury, and in other like cases, there can be no doubt that lack of an adequate consideration must have a material bearing on the question whether the deed ought to stand or not.

It is contended on the part of the respondent that the plaintiff's claim to the relief is founded on a mistake of law, and that, therefore, she is not entitled to relief. It may be conceded, generally, that courts of equity do not ordinarily grant relief where the only grounds upon which such relief is sought is a mistake of law. It is said that every person is presumed to know the law, and that one will not be permitted to allege his ignorance thereof as a ground of relief in equity; but many of the cases come so near the border line between mistakes of law and mistakes of fact that the point of demarkation is not always apparent, and there can be no doubt that, owing to the hardships growing out of an inflexible and unbending application of this rule, some apparent exceptions have been admitted. But it is not conceded that this case falls within that principle. Under the particular circumstances of this case, the plaintiff's mistake is to be regarded as one of fact. Mr. Pomeroy states the rule thus: "Whenever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, 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 duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact." 2 Pom. Eq. Jur. § 819. Now, in this case, it is apparent that the plaintiff was totally ignorant of her interest in the real property conveyed. After a very careful perusal of the evidence, I am satisfied the plaintiff had no knowledge whatever touching her interest in said real property when she made the deed in question. But I do not place this decision on this point alone. The defendant's language and conduct towards that plaintiff respecting this matter had a direct tendency to overreach and mislead her. In none of the various conversations had between the plaintiff Elizabeth and the defendant, touching the execution of this deed, did the defendant ever intimate that her object in procuring it was to acquire plaintiff's interest in the property. On the contrary, she constantly maintained that the plaintiff had no interest; that the land all belonged to her; and, even in her deposition taken in this case, she asserts the same thing many times. Not only so, but when she was soheiting the plaintiff to execute the deed, she gave as a reason therefor something that was not true in fact, and, if not actually designed by her to be misleading, its effect was so. But, in addition, to this, the relation of parent

and child, while its influence continues, is a fiduciary one, and the law appli cable to that relation must be applied here. "A child is presumed to be under the exercise of parental influence as long as the dominion of the parent lasts. While that dominion lasts, it lies on the parent maintaining the gift to disprove the exercise of parental influence by showing that the child had independent advice, or in some other way When the parental influence is disapproved, or that influence has ceased, a gift from a child stands on the same footing as any other gift; and the question to be determined is whether there was a deliberate, unbiased intention on the part of the child to give to the parent." 2 Pom. Eq. Jur. § 962. A reference to some of the adjudged cases will tend to further elucidate the principle.

In Miller v. Simonds, 5 Mo. App. 33, it is said: "But if all the pecuniary advantage be on the side of the grantee, the, burden is strongly on him to divest the transaction of every element of influence over the grantor's nind growing out of the former relations between the parties."

In Archer v. Hudson, 7 Beav. 557, Lord LANGDALE said: "If there be a pecuniary transaction between parent and child, just after the child attains the age of twenty-one years, and prior to what may be called complete emancipation, without any benefit moving to the child, the presumption is that undue influence has been exercised to procure that liberality on the part of the child. And it is the business of the party who endeavors to maintain such a transaction to show that the presumption is adequately rebutted."

In Bergen v. Udall, 31 Barb. 9, the court said: "A transaction like the present, in which a daughter, immediately upon her arrival at age, makes a voluntary conveyance for the benefit of her father, will be examined by the court with the most jealous scrutiny and suspicion. The person relying upon it must show affirmatively, not only that the person who made it understood its nature and effect, and executed it voluntarily, but that such will and intention was not in any degree the result of misrepresentation or mistake, and was not induced by the exertion, for selfish purposes and for his own exclusive benefit, of the influence or control which he possessed, as a father, over his daughter."

So, also, in Ross v. Ross, 6 Hun, 80, it is said: "A court of equity interposes its benign jurisdiction to set aside instruments executed between persons in relation of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations, in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another; and this power will be exercised unless the instrument is satisfactorily shown to be fair, and free from improper influence by the party seeking its benefit, the burden of which rests on him." And the like rule is declared in Ranken v. Patton, 65 Mo. 378.

But it is useless to multiply authorities. The principle is elementary and universal in this country, and its application disposes of this case. The defendant, by importunity and misrepresentation, obtained the deed in question without consideration, and while the plaintiff was ignorant of her rights, and the same cannot, therefore, be allowed to stand. The defendant will therefore be required to convey to the plaintiff Elizabeth Baldock one equal undivided one-third of the real property described in the complaint, by deed properly executed, within 30 days after the entry of the decree in the court below, and, in default of such conveyance, then that this decree shall operate to convey the same to the said Elizabeth, and stand in lieu of such deed, and that the proper decree be entered here to carry said decision into effect, and that appellants recover their costs.