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the consequences of his mistake. And this principle was fully applied by the Supreme Court of the United States in Wheeler versus Smith et al.

Relief has never been given in the case of a simple money demand by one person against another, there being between those two persons no fiduciary relation whatever and no equity to supervene by reason of the conduct of either of the parties.

Where people have a proper knowledge of all the facts and take advice, and whether they get proper advice or not the money is divided and the business is settled, it is not for the good of mankind that it should be re-opened by one of the parties saying: "You have received your money by mistake, I acquiesced in your receipt of it under that mistake, and, therefore, I ask you to give it to me back."

There is no doubt as to the rule of law that money paid with a full knowledge of all the facts, although it may be under a mistake of law on the part of both parties, cannot be recovered back; and it is equally clear that, as a general rule, the court of equity did not in such cases interfere. Nothing would be more mischievous than for the court to say that money paid, for instance, under a mercantile contract, according to the construction which the parties themselves put upon that contract, might, years afterward, be recovered, because perhaps some court of justice upon a similar contract gave to it a different construction from that which the parties had put on it. The rule of law is in itself an equitable and just rule which is not interfered with by courts of equity.

The agreement of the parties-the meeting of their minds upon the conditions and obligations touching the subject contemplated by them-constitutes their contract. The written instrument is made the evidence of that contract. If it fails to present their agreement, the contract it expresses is not the agreement of the parties, and the true contract remains unexecuted. In such a case equity will reform the writing, causing it to express the intentions of the parties. Equitable relief will, therefore, be granted without regard to

the cause of the failure of the instrument to express the true contract, whether it be from fraud, mistake in the use of language or any other thing which prevented the expression of the intentions of the parties.

The rule of equity that relief will not be granted to correct mistakes of law has no application to mistakes in the language of a contract or in the choice of the form of an instrument whereby it has an effect different from the intention of the parties. If parties intending to sell and purchase lands should in ignorance of its legal effect execute a lease, equity would reform the instrument, though it was a mistake of law which led them to adopt the lease for a deed.

Where two are bound by a bond, and the obligee releases one, mistakenly believing that the other will remain bound, equity will not grant him relief, for the release is just what he intended it to be; his mistake related to the effect of the contract in matters not contemplated therein.

The mistakes of law against which equity will not relieve are those which pertain to the subject of the contract, and were inducements thereto or considerations therefor. In such cases the parties intended to make the very contracts which they executed but were induced to make them by a mistake of law.

A tenant for life purchased a reversion under the mistake of law that such purchase would cut off the remainder in tail and vest the fee in him. It was held that he could not have relief. A power of attorney was taken from a debtor as security; but the debtor died before the power was executed. Equity would not grant relief.

In each of these cases the very contracts entered into by the parties were embodied in the instruments. The mistakes were as to the results to be reached, which were inducements to the contracts. In the first case the purchaser supposed that the acquisition of the reversion would vest in him the fee simple title. This was the inducement for the purchase. It was a mistake of law. In the second case it was the purpose of the parties to secure the payment of the debt. They mistakenly chose a power of attorney to effect their object.

But their purpose was defeated by the law which provides that the death of the grantor revokes a power of attorney.

In all the States in which the common law in reference to the property of married women has been abrogated, either by constitutional or statutory provisions, and the wife clothed with capacity to hold property owned by her at the time of marriage, or which, after marriage, she becomes entitled to, the constitutional or statutory provision has not been construed as subverting or as effecting equitable separate estates—the creation of the donors of property and not the creation of law. They arise from the terms of a gift, or a devise, deed or other instrument into which the donor may introduce such uses, trusts, or limitations as are deemed by him most expedient to effectuate his purposes. The estate created by the statute is a strictly legal estate, for the recovery of which the wife must sue at law, and in her own name unless, in the particular case there be some circumstances rendering legal remedies inadequate or peculiarly of equitable cognizance. When titles have been acquired or judgments rendered or contracts performed or transactions completed, a subsequent judicial decision, reversing or overruling decisions upon which they have been founded, cannot be invoked to undo or annul them.

A party arrested upon ne exeat may obtain the discharge of the writ upon motion or petition after notice, and according to some authorities "it is a matter of course to order the ne exeat to be discharged upon the defendant's giving security to answer the complainant's bill, and to render himself amenable to the process of the court pending the litigation, and to such process as may be issued to compel a performance of the final decree. Or, where the defendant cannot procure such security as will satisfy the sheriff or marshal, or if he wishes to leave the State before the termination of the suit, he may apply to the court to discharge the ne exeat upon his giving proper security to answer and be amenable to process. And upon such application, the court will take such security as it may deem sufficient and will discharge the sheriff or marshal from liability."

But there are cases in which the court may require as a condition of the discharge of a writ of ne exeat, that the respondent give security to abide and perform the orders and decrees of the court in the suit in which it was given. If the bond means, in law, more than that, the case is one of mutual mistake as to the legal effect of the instrument. A court of equity ought not to allow a mistake in the giving of a bond supposedly as bail to answer but purporting to guarantee performance, to stand uncorrected, and thereby subject the surety to a liability he did not intend to assume. In the death of the party a decree reforming or rescinding the bond would not be appropriate. Under the circumstances, the only decree that will accomplish the ends of substantial justice is one perpetually enjoining the prosecution of any action, suit or proceeding to make the surety liable to a penalty by reason of the bond.

The court has decreed that a deed conveying land to the purchaser and "her bodily heirs" only conveyed a life estate, and did not correctly express the contract and agreement between the parties, and directed that it be corrected to convey such intention, and to convey the property to the purchaser in fee simple.

It cannot be that a gift voluntarily made, without mistake or fraud, can be at will recovered back from the donee.

If a party can read, it is not open to him, after executing it, to insist that the terms of the deed were different from what he supposed them to be when he signed it. Nor can one who is unable to read be admitted to object that he was misled in signing the deed, unless he had requested to hear it read.

Affirming the action of the Circuit Court for Lincoln County, Wis., in sustaining a demurrer interposed by the defendant, the State Supreme Court, in February, 1896, said:

It may be, probably is, the law that a judgment creditor of the assignor may maintain an action in a proper case in a court of equity, on his own behalf and on behalf of all others in like situation, to avoid or set aside a

settlement or conveyance made by the assignee in fraud of the right of creditors, or under a mistake of fact to their injury. . .

But this action was brought on a theory entirely different from those mentioned. It is that the assignee has the same right to maintain an action to set aside his own conveyance, made in administering the estate, as is given him by statute to maintain actions to set aside conveyances by his assignee, made in fraud of creditors, before the assignment was made. Before the statute, the assignee represented the assignor only. He could maintain no action to set aside the assignor's conveyances in fraud of creditors. The statute makes him the representative of creditors in respect to all fraudulent transfers of property by the assignor, and gives him the right to maintain actions to avoid the same. But his capacity to represent creditors is limited to the maintenance of actions to set aside the conveyances of his assignor by the terms of the statute itself. He can bring no action which the statute does not, in terms or by necessary implication, authorize. It does not authorize an action to be brought by a creditor, in the name of the assignee, to set aside a conveyance made by the assignee himself.

[Relief for Mistake of Fact.]

A mistake as to a matter of fact, to warrant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied that but for the mistake the complainant would not have assumed the obligation from which he seeks to be relieved.

Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence which may be fairly expected from a reasonable person.

Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These

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