¶1The rule that money paid or property conveyed, under a mistake as to the law, cannot be recovered back, although often repeated, is one not of universal or unqualified application. Exceptions to it, as a general rule, have often been made, and have received the sanction of courts of justice; but the distinctions have not always been clearly defined, nor the reasons, in all cases, satisfactorily explained.
¶2In a very recent case, we had occasion to enquire, under what circumstances, a party paying money through a mistake, as to his legal liability, might recover it back. Northrop v. Graves, 19 Conn. R. 548. And after a careful examination of the leading cases upon that subject, we held, that a party, who had paid money under a mistake, as to his rights and duty, which he was under no legal or moral obligation to pay, and which the party receiving it, had no right, in good conscience, to retain, might recover it back, in an action at law, whether the mistake was one of fact or of law.
¶3Subsequent reflection has not led us to doubt the correct*145ness of that rule. The same principle may be applied to the conveyance of property, as to the payment of money, although the mode of redress in the one case, may be different from that in the other.
¶4Perhaps the rule more immediately applicable to the case under consideration, may be better stated in this manner. 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.
¶5A party may be as much injured, by a mistake of the scrivener, in the language of the deed, arising from his want of skill in the law, as from a misdescription of the property conveyed, arising from his want of knowledge upon that subject. And a person unskilled in the technical language of conveyances, might be as readily misled, in the one case, as in the other.
¶6But where the conveyance was such as the parties intended it should be, and the grantee may, in good conscience, retain the property, although the grantor may have been mistaken as to the extent of his title, a court of chancery will generally refuse its interference.
¶7It was upon a distinction of this kind, that the late case of Wooden & al. v. Haviland, proceeded. 18 Conn. R. 101. There, the scrivener, by mistake in drawing a mortgage deed, omitted a description of the notes in the condition, and the omission was not discovered, by the mortgagees, until some time after the execution of the deed; we held, that that mistake might be corrected.
¶8But the mortgagor, in her cross-bill, set up a mistake, on her part, as to the extent of her title to the mortgaged premises, and prayed to be relieved from the mortgage. But as the mortgagees had done no act tending to mislead her, and had given up their debts against her father, and assumed and paid others, relying for their security upon the mortgage given by her, it was held not to be inequitable in them to retain their security; and that, consequently, she was not entitled to relief.
¶9*146What are the facts, in the present case? Four sisters were the joint owners of a tract of land, which they and the husbands were desirous of having aparted to them in severalty. A division was mutually agreed upon, and one of the husbands undertook to prepare the deeds to carry that division into effect. By mistake, misapprehension and ignorance of the law, he inserted the name of each husband, as grantee with his wife, in the deed to her. The effect was, to give him an estate in fee in an undivided portion of the share to be conveyed to his wife.
¶10It is found, that these deeds were, by mistake, misapprehension, and ignorance of the form in which they should be drawn, executed by the parties. There was no intention, on the part of any one of them, to convey to the husbands a greater interest than they were entitled to, by virtue of their marital rights.
¶11Under a deed thus mistakenly drawn, and executed, the defendant took an estate in fee in an undivided share of the land intended to be conveyed to his wife. Had the deed been drawn in conformity to the intention of the parties, his whole interest in the property would have terminated upon her death, as she died without ever having had issue.
¶12Upon what principle of justice or equity can he now retain the interest in the property thus conveyed to him? He has never paid any thing for the property, nor was it ever intended, by the parties to the conveyance, that he should take more than he would have had, if the deed had been made to her alone.
¶13It was natural, that these married women should rely upon their husbands for directions as to the proper mode of carrying the partition into effect. One of the husbands prepared the deeds; and it is found, that when the discussion arose as to the propriety of inserting the names of the husbands, the defendant insisted, that without such insertion, the deeds would be good for nothing.
¶14It is true, no distinction was made between the insertion of the names, as grantees or grantors; but it is obvious, that the enquiry must have been, whether it was proper to insert them, in the manner in which they were inserted in the deeds then prepared.
¶15Now, if the defendant, in the claim which he made, intentionally misled his wife and her sisters in relation to the *147deeds, it operated as a fraud upon her, and he cannot stand, for a moment, in a court of equity, upon his defence. On the other hand, if he laboured under the same mistake with the others, as it is found that he did, then his attempt to avail himself of that mistake, comes with a peculiarly ill grace from him.
¶16It is however said, that the parties have slept over their rights, for a period of more than twenty years; and that the defendant’s wife never called upon him to rectify the mistake. But during the coverture, he was entitled to the use of the property, and there was nothing in the manner of that use, calculated to awaken suspicion that the deed was not as it should be; and it is found, that neither she, nor any of her sisters, had knowledge of the mistake, until about a year and an half before her decease, when the fact was communicated to her, by the defendant. It does not appear, that she ever complained to him; but it is found, that she and the sister to whom she communicated the information, were troubled about it.
¶17We do not therefore think, there is any thing in the lapse of time, which varies the rights of the parties.
¶18It is further claimed, that if the plaintiffs are entitled to the estate, the defendant is entitled to an allowance on account of the improvements which he has made. It is very clear, that if they had been made upon property wholly owned by her, he could sustain no suit to recover on that account. But as under the deed, he took an undivided portion of the estate in fee, when the plaintiffs call upon him to give up to them his share of the property, it seems to be no more than equitable, that they should allow his proportional share of the improvements, upon the principle that he who seeks equity, must himself do that which is equitable.
¶19We therefore advise the superior court to decree in favour of the plaintiffs, as to the title to the property; and also to allow the defendant his proportional share of the improvements.
¶20Decree for plaintiffs;
¶21Defendant allowed for improvements.