, of· law bommlttedby-these parties, under all the circumstances surrounding the sale of Mrs. Bishop's estate, that a court of equity is bound to give reIief.from its consequences to this complainant/who is the only one,(jf the defendant's grantors who is now demanding a reconveyance. · The general rule, both at law and in equity, is that a conveyance, unaccompanied by fraud or imposition, will not beset aside for a mistake of law. ·Contracts and conveyances have been canceled or reformed to correct a mistake 'of fact, or in order to carry out the intention of the , parties,but where there has been a mutual and plain mistake of law, the interference of a court of equity has been rare and exceptional. Conflicting opinions of able judges may be found on the meaning and application ·of the maxim, igrtorantia juris non excusat, but the current of authorities in this 'country is ,in favor of' enforcing the rule as just stated. Some learned' jurists have assumed the position that the maxim was designed to apply to violations of ;the criminal law. only, and that; it should not prevent 'the rectification a mistake, when a person has ignorantly disposed of· his private right of property. Variousuice distinctions and refined reasoning have beert employed to relax the 'stringency of the rule, ., and counsel for' cOlllplainant .have 'referred to ,respectable authorities, both i'n: this country and 'in England, to sustain their theory that the case affords the example of a. mixed mistake of law and fact, for . which the relief now sought for has beengranted. In Freeman v. Curtis, '61 Me, 140, it was held that money paid or other propertyconveyed under LattJistake of law, with full knowledge of the facts, cannot be recovered back; but in that case the defendant' pad paid no consideration for the . property, and, being also guilty of deception, a reconveyance was ordered. It is true that in that case the plaintiffs were igndrantof the law relating · to' the descent and distribution of estates, and this ignorance of the law , involved thet11 in a mistake of fact as to who were the heirs of H. Curtis; · aild' the court said: "Where the mistake is one both of law and fact, 'though the latter is the result of the former, relief will be granted when .' justice and equity require it." The doctrine thus laid dOWn might be a.ccepted as sound, when; all the parties who had lost or gained by the -mistake could be restored to their original condition in relation to the ;']>1l0perty;affected;' but it may be considered more in the light of adict'l.llm 'tban ofan adjudication, since the case waS decided oli other and different · gl1\1>unds. The maxim igru>rantia et eet. is founded 011 the presumption ,.thlltevery person is acquainted with his own rights, provided he has l'hMareasonable opportunity to know'tbem, and oh a long experience :()fthe dangerous and embarrassing results that would follow if ignorance ,ottne law should berecoghized as asulficient cause for the annulment of .(jdntracts which have been executed by a complete performance. 1 Story, · Eq.Jur. §111; Bubie vfIAimley, 2"East, 469. What was the mistake JriMe' 'by the parties in this cause? The complainant was both a cousin · of the whole blood and an :aunt of the half-blood of Mrs. Bishop. It is ':-oohtitted that, at the time when the complainant executed her deed, she believed that she was entitled to a one-twenty-fourth part of the estate , only, as a cousin-german of the decedent,and that she intended to con-
HAMBLIN 'Vi BISHOP.
vey that much and no more of her interest to the defendant. It is also admitted that the defendant believed that he was purchasing from her the share to which she was entitled as a cousin, and that both were alike ignorant that by law she was also entitled to an ,additional share of fourfortieths as an aunt. This mistake arose from the incorrect advice of the counsel who was consulted by the heirs. or from a misunderstanding of that advice. In' either case both parties acted in ignorance of the provisions of the statute of Delaware, which directs the transmission of the estate Of a decedent who dies intestate, leaving only uncles and aunts, or the issue of a deceased uncle or aunt, to survive her. The statute provides that in such cases the estate shall descendtheneXtof kin in equal degree; and the lawful ,issue Of such next of kin liy right of representation: provided. that collateral kindred claiming through It. nearer common ances,tor shall be preferred to kindred claiming remote common ancester." Rev. St. Del. c. 85. § 1. The same section; in a preceding part of it, provides that the decedent's brothers and sisters of the whole blood shall be preferred to the brothers and" sisters of the half-blood. It was doubtless the misapprehensionofthis rule of preference of the whole blood, when the estate de'volved on 'brothers and sisters, that ledta the mistaken construction of ,t,hat part of the statute guoted" and by which the heirs had been instructed ,that their interestS were determined. But this portion of statute had long before received a judicial interpretation in McKinney ". Mellon, 3 Houst. 277, which settled all question of its meaning. It was there deCided that«The are entitled to. and must be admi tted to share in. the distribution ih equal degree with the whole blood in all cases where they are not, by express statutory provision. excluded by prefel'ence conferred by it upon others. This our statute has only done in preferring brothers and sisters of ,thewhol\'l blood to brothers and sisters of the half-blood. The construction given to this statute by the lawyer who was consulted by the, heirs excluded the uncles and aunt of thehaIf-blood from any share of the estate, and hence the mistake, which was a plain and, simple mistake of law, made with a full knowledge of all the facts of relationship and degree of consanguinity of the defendant's grantors to Mrs. Bishop. Can it be said with any propriety that this mistake was one of fact, Or of mixed fact and law? On this point it has been observed that,where there isa plain and established doctrine, so generally known as the common canons of descent there, a mistake in ignorance of law, and of title founded on it, may well give rise to a presumption that there has been some undue influence, imposition, mental imbecility, surprise, 01' confidence abused. But in such cases mistake of the law is not the foundation of the relief, but it is the medium of proof to establishsome other ground of relief.' 1 Story, Eq. Jur. § 128. As already said, there has been mtlCh discussion of the question when and how-far a court of equity will go in granting relief from a mistake of this kindjbut it will not be necessary or useful to renew that discus,sion here, or to review the numerous authorities that are to be found in v.41F.no.2-6
,the v. 205" so muchre.lied on, by the complainant's counsel, ,hB.$ not beenaqcepted as the law of ,\lis>(lpuntry, it' been uniforPlly rece,ived. as a controlling authority England. .' In that case the (ilourt the plaintiff from a of law whic'll; committecJ.undertheadvice of a layman; but the facts whichwe"e before the court, have pot been fully reported, and the decision criticised and doubted; , It is enough for the p.resent purpose to kn9w, that .the; question clearly preseqted aud consicJ.eredinBank v. Da'flli..ell12 Pet. 32, in which the court stateij tbeprinctP,le in in these words:. "The main question.onwhicbrelief wa8sought by the bill. that on which llt;ll.ow and on this court fQr of agamsta mistake of law?" :'Aftel' a discussion of the evidence. 'and a reference to the confusion created by numerous' alid conflicting decisions, the court reaffirms its de'Cismn'iinHwnt v. with th)slanguage: 10: , ,:., ,"'resting the case by the:pl'inciple·tb8.t atrlistake or ignorance of the law fQrm!loo groun<lrOf l;elief inw, witb:&, full knowle\lg.e ,Qf ,tlle ,tactE!.'and repelling of or llP-f!u,e p()ue of. whicbare chargeable upontlie' appel1a.ntSlp thiS case., then were the complainants entitled, to relief? To which we reSpond decidedly ,in i ' , " ,;. '
The court had previoJsly said, in Hunt , , .. Th;ttwpatever excetltipns t"'ere lDl:Ioybe tothiuule, -fromignotance 'of Jaw are: !1pt, relie:vab1e they are not on)y"f,ew in 'Jl,umber. but be,'fiIi,Q<l to E!olnElthing peculiar ch,aracter. inv,olve other , ' , In commenting" dn' theSE! iwd caseS',' an eminent' jurist, has remarked "so far tl;1e ,ar.a cpnperned, the ques1 Story, Eq.Jur,. 148. tiop.mlltY be ': The estate of Mrs. msP,9P ($0,000,) flhoul\l into 40 ,s},:ln,res, ,and uncle and aunt ,liMingjatthetime()f'4flr death, anlio,Qe share toea<lp. of the fouf Qhilq.,ren of B/lfflblin t ,the nder that arrangehave four aha,r,es as anllount, and .9neshare as a cousin!; 1 ,Tprough' ignorance of ,the law,! without any Jallit of the /:las been deprived o[(o\1r shaI'es,a .loss Which ;*e court cannot restore .tp her. ,l'h.ia m!Ly entail:s<:>IiIle hardship, OP, ber, on the other COUl;t ;was:at liberty to order, and'should a decree for a rec()nveyance, fl.,. still, ;greater hl(1lrdship would be inA, ·of is: ,always ;reluctant to ,rtr fHqted ,on, the scind a contract, parties can be putbaQIt in stat'lJ, quo; apd if Jh.is,ca:nnot be <lone, itwi4 give only where clearest qemandll it. ,·.Gryrne8 v. Sander8, 93 V.S.,o2.. " ',i'rhe equities in being equql,the ex,istingcondW<msof:
j ',.,.' , ·· _ · , '. · ',,'
UNr.r,ED STATE:s tI. TOWN OF CICERO.
after he had acquired possession of the estate, began at on6e to'lay, out money in improving the property, which he did quite extensively. The distribution of the money paid by him ,to the heirs was made under a mistake of law, due to the common ignorance of all the parties concerned in the settlement. Justice and equity would appear to require a redistribution, but thif'ltcannot be ordered under the present proceedings; llnd whether, nt this late day, the complainant could successfully demand a contribution, from each one of the heirs who was overpaid, to make good her loss; iell question not now before the court. be entered dismissing the bill.
TOWN OF CICERO.
In!Iiana.December 81, 1889.)
, Rev.St. Ind. 1881, § 3388, cl. 15, !lOnfersupon lncorporated towns tbe power "to levy and collect annual taxes, not to exceed fifty cents on the hundred dollars valuation, 'and twenty-five cents pOll-tax, on all :property subjebt, by law to 86Qtion provides t.hat "tpe board of trustees shalll the third 'l'uesday in May of eaeh year, * * · dete'rmine the amount or general tax for the current year;" and section 8849, that, "when the assessment roll shall have been corrected and trustee.s sNl:lllevya tax upon the taxable property of to, sUQli an amount as they may deem necessary," etc. HeW., that these prOVIsIons, being, 'Orilrinal1y all' parts of' the same enactment, were to be read ,together, and, while unaer section8S49 the, ,boaI'd sPall annually lev1: a tax ,to such Bon amount as necessary, the be w:ithin the limIts prescribed In clause 15 of sectIon . ' , SllIE.' , The power given bi clause 17 of section 8833, "to complete school.houseB nawlnprogressof erectiun; and provIde fol' the paywent of the same, to erect. or proV'ide8!1ch school-houses as may be necessary for the use of the schools of the town, to kee() them in repair, " etc., .is not inconsistent with the limits prescribed' in clause 15 of saId Secti!ln. , A grant'ofpower to a municipal cOrpOration to incur Indebtedness does not neoQlU'liYwiJ;bit,s,u implication of power to levy taxes s\lffic1ent to meet the 0llligation when TO :1o(.i.:n LEVy---RIGHTS Oll' BONDHOLDERS. " The fact :that In some of the years past a, town has omitted to levy the special tax prOVided for in a act. to pay tbe bOnds of the town, does n,ot give the bondholders therigbtto have such omissiOns made good by mandamus, i:t thoyaoquiesce in the omission to make the levies. ' ,
SAMB-WAIVEJlIN:BoND Oll' APPB4ISEMENT LAWS.
A to pay contained in munlcipaI bonds, relief the valuation or apprQ1sement laws of the state," is a mere waIver by the (lebtor: of the benefit of vaJ.uation 1)1' appraisement in case the Obligation shall be enforced byexecutlon at lawband cs,unot be construed to require levies for payinent'of the bonds to be made up n the same valiJation that existed in the town when the !,ssued,
Recitals In municipal bonds are binding only In respect to matters of fact, and noUn respect io..m8tmrs of law, of which all are bound to talte cognizaJlee.
BONDS-LAW AND FACT.
In Equity. Application for mandamus.
L·. o.. CWff(JJ'd ,4ml
,BtlWers,:' for relators.