was for service as an actress for a period of about six months, at a stipulated price per week, and it is immaterial that during a particular week her active service was not required.

There is no material error in the case, and the order refusing a new trial is affirmed.

FREDERICK W. BENSON vs. WILLIAM Markoe.

May 21, 1887.

Equity-Mistake of Law.-The power of courts of equity to afford relief from the consequences of the mistakes of parties to written instruments is not strictly limited to mistakes of fact, but extends also to mistakes of law. While, for a bare mistake of law alone, without other considerations affecting the case, relief will rarely, if ever, be afforded, yet equity will interfere where it further appears that the defendant, availing himself of the opportunities afforded by the mistake, will take an unconscionable advantage of the plaintiff, without consideration; the plaintiff being blameless, and the defendant being in no position entitling him to equitable protection.

Same-Reformation of Contracts.-In general, for the mistake of one party only to an instrument, relief will not be afforded, as by reformation, so as to subject the other party to obligations or conditions to which he never assented, but relief may be granted when the parties can be placed in their former position.

Same-Deed and Purchase-Money Mortgage Quitclaim by Mortgagee Limited so as not to Release the Mortgage. The plaintiff, who had sold certain real estate to the defendant's grantor, and executed a deed of conveyance, taking back a mortgage for the price, $12,000, was afterwards requested by the grantee to execute to him a further deed of release and quitclaim of the premises for the purpose of effectually conveying certain land, which, as was represented, had not been transferred by the prior deed. The plaintiff executed the quitclaim and release, without consideration, thereby in legal effect, but contrary to his intention, discharging his mortgage. Held, that the plaintiff is entitled to relief limiting the operation of the latter deed to the conveyance of the premises, the defendant having acquired his title with knowledge of the plaintiff's equity.

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint.

James B. Beals and Ralston J. Markoe, for appellant, cited Catlin v. Fletcher, 9 Minn. 75 (85;) Schurmeier v. Johnson, 10 Minn. 250 (319, 322;) Hill v. Edwards, 11 Minn. 5 (22;) Berthold v. Fox, 13 Minn. 462 (501;) McKusick v. County of Washington, 16 Minn. 135 (151;) First National Bank v. National Marine Bank, 20 Minn. 49 (63;) City of Winona v. Thompson, 24 Minn. 199; Jaggar v. Winslow, 30 Minn. 263; Stone v. Harmon, 31 Minn. 512, 516; Whitney v. Smith, 33 Minn. 124; Paine v. Smith, 33 Minn. 495; Thompson v. Libby, 34 Minn. 374; Goltra v. Sanasack, 53 Ill. 456; Sims v. Lyle, 4 Wash. 320; Zane v. Cawley, 21 N. J. Eq. 130; Easter v. Severin, 78 Ind. 540; Champlin v. Laytin, 18 Wend. 407; Kenyon v. Welty, 20 Cal. 637; Gross v. Leber, 47 Pa. St. 520; Nelson v. Davis, 40 Ind. 366; Free v. Meikel, 39 Ind. 318; Weed v. Weed, 94 N. Y. 243; Lanning v. Carpenter, 48 N. Y. 408–13; Gerald v. Elley, 45 Iowa, 322; Lyon v. Richmond, 2 John. Ch. 51; Oswald v. Sproehule, 16 Ill. App. 368; Bank of United States v. Daniel, 12 Pet. 48; United States v. Price, 9 How. 90; Lanborn v. County Com'rs, 97 U. S. 181; United States v. Ames, 99 U. S. 35, 46; Lott v. Kaiser, 61 Tex. 665; Corning v. Grohe, 21 N. W. Rep. 662; Gwynn v. Hamilton, 29 Ala. 233; Juzan v. Toulmin, 9 Ala. 662; Campbell v. Carter, 14 Ill. 286; Ackerman v. Vreeland, 14 N. J. Eq. 23; Furbush v. Goodwin, 25 N. H. 425; Morris v. Stephens, 46 Pa. St. 200; Hall v. Leonard, 1 Pick. 27; Pomeroy, Eq. Jur. §§ 843, 849; Bispham's Eq. § 187; Story, Eq. § 138; St. Luke's Home v. Association, 52 N. Y. 191; Armstrong v. Du Bois, 90 N. Y. 95, 104; Drew v. Swift, 46 N. Y. 204; Gilbert v. Moline Plow Co., 119 U. S. 491; Kirkland v. Conway, 6 N. E. Rep. 59; Lang v. Straus, 7 N. E. Rep. 763; Jaqua v. Witham, 7 N. E. Rep. 314; Bever v. North, 8 N. E. Rep. 576; Henry v. Stevens, 9 N. E. Rep. 356; Bank of U. S. v. Dunn, 6 Pet. 57; Martin v. Berens, 67 Pa. St. 459; Hutchins v. Hutchins, 98 N. Y. 56; Marsh v. McNair, 99 N. Y. 174.

W. J. Rodgers and H. J. Horn, for respondent.

DICKINSON, J. This is a demurrer to the complaint. It appears from the complaint that in 1883 the plaintiff, being the owner of several lots in a certain block of land in the village of White Bear, sold and conveyed them to William F. Markoe, a son of the defendant, designating the property conveyed by giving the numbers of the lots and block according to the recorded plat. The plaintiff took back a mortgage upon the same property to secure the payment of the purchase price, a sum of about $12,000, which was recorded. In 1885 the grantee "applied to this plaintiff to make, execute, and deliver a deed of quitclaim and release of said mortgaged premises, and then and there alleged, as a reason for such request," that the block contained a surplus of land exceeding the area specified in the plat, and that the proper proportion of this, justly pertaining to the lots described, had not been conveyed by the deed. The plaintiff, "relying upon said representations, and believing the same to be true," made, executed, and delivered to his former grantee a deed of release and quitclaim, whereby the plaintiff, for the acknowledged consideration of five dollars, granted, released, and quitclaimed to his former grantee the premises described in the mortgage, which deed was recorded. It is alleged that this was without any consideration, and that the plaintiff never intended thereby to release or discharge the mortgage. After this, the plaintiff's grantee, who is alleged to be insolvent, conveyed the premises to this defendant, who took the same with full notice and knowledge of these facts, and the defendant now claims to own the premises discharged of the lien of the mortgage.

The legal effect of the release and quitclaim to the mortgagor was to discharge the mortgage. Gille v. Hunt, 35 Minn. 357, (29 N. W. Rep. 2.) The question is whether relief can be had in equity upon the ground of the mistake.

It is argued that even if the complaint be construed as showing that it was not the intention of either the grantor or grantee that the mortgage should be discharged, but that the mutual intention was only to convey land not conveyed by the former deed, yet equity will afford no relief because the mistake of the parties as to the legal effect of the instrument was a mistake of law, and for this there is no relief.

It is a general rule, recognized in equity as well as at law, that mere mistakes of law, unattended by other circumstances affecting the case, do not afford ground for relief; but it is not a rule of universal application that equity will not hear parties to allege a mistake as to the law, or afford relief for its consequences.

In Canedy v. Marcy, 13 Gray, 373, an oral contract had been made by the plaintiffs, who had inherited certain real estate subject to a widow's dower, to sell two-thirds of the premises, it not being intended to include the reversionary interest of the heirs in the onethird which might be set off to the widow as dower. By mistake, deeds were drawn in such terms as to convey also this reversionary interest of the plaintiffs. The terms of the deeds were such as were intended to be employed, but both the scrivener who drew them, and the grantors, and, as it seems, the grantee as well, were mistaken as to the legal effect of those terms, supposing that they were only effectual to convey two-thirds of the premises. The grantee did not claim any greater estate; but, he having reconveyed to the defendant, the latter asserted title to the whole estate. Equitable relief being sought in this action, it was allowed, Shaw, C. J., saying: "We are of opinion that courts of equity in such cases are not limited to affording relief only in case of mistake of fact, and that a mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against upon proper proof."

Stedwell v. Anderson, 21 Conn. 139, was a case where several sisters, owning land jointly, attempted, with their respective husbands, to make partition by deed. One of the husbands, who drew the deeds, by mistake and ignorance as to the proper form, made the husbands grantees with their wives, thus conveying a fee to the husbands contrary to the intention of the parties. In this action, many years afterwards, relief was afforded, the court saying: "When property has been conveyed through mistake, by deed, which the parties never intended should be conveyed, which the grantor was under no legal or moral obligation to convey, and which the grantee in good conscience has no right to retain, a court of chancery will interfere, and correct that mistake, whether it arose from a misapprehension of the facts, or of the legal operation of the deed."

v.37M-3

In Cooke v. Husbands, 11 Md. 492, a deed was executed which, by mistake of the draughtsman as to its legal effect, conveyed a greater interest than was intended by the parties. Relief was granted.

Clayton v. Freet, 10 Ohio St. 544, was for the correction of a deed. The parties were shown to have intended the conveyance to be of lands to a wife for life, with remainder to her children. By ignorance and mistake the deed was made conveying the premises to the wife and to her heirs, the parties supposing such a deed would have the desired effect. Relief was granted, although the mistake was one

of law.

A similar case was presented in Evants v. Strode, 11 Ohio, 480, (38 Am. Dec. 744,) and the same principle declared. See, also, to the same effect, McNaughten v. Partridge, 11 Ohio, 223, (38 Am. Dec. 731.)

The same principle was involved in Remington v. Higgins, 54 Cal. 620, which supports the proposition that a mistake of law as well as of fact may afford ground of relief in equity. So in McMillan v. New York Water Proof Paper Co., 29 N. J. Eq. 610, a mortgage by mistake drawn to certain individuals and their "successors," instead of to their heirs, was corrected. See, further, Brown v. Lamphear, 35 Vt. 252; Larkins v. Biddle, 21 Ala. 252; Champlin v. Laytin, 1 Edw. Ch. 467; Green v. Morris & Essex R. Co., 12 N. J. Eq. 165; Stover v. Poole, 67 Me. 217, 223; Worley v. Tuggle, 4 Bush, 168; Walden v. Skinner, 101 U. S. 577; Snell v. Insurance Co., 98 U. S. 85; Pitcher v. Hennessey, 48 N. Y. 415, 424; Baker v. Massey, 50 Iowa, 399; Underwood v. Brockman, 4 Dana, 309, (29 Am. Dec. 407;) Willan v. Willan, 16 Ves. 72; Pollock, Cont. 393, 395, 450; Leake, Cont. 345, 346; 2 Pom. Eq. Jur. 842-817.

A careful consideration of the authorities has led us to the conclusion that the power of courts of equity to afford relief from the consequences of the mutual mistakes of parties to written instruments. is not strictly limited to cases of mistake of fact, but extends also to mistakes of law; and while, if nothing more than the bare mistake be shown as a reason for relief, it will rarely, if ever, be granted, yet equity will interfere where it further appears that the defendant, availing himself of the opportunities afforded by the mistake, will