deed of trust which he held for purchase money, may, by reason of the agent's adverse personal interest in the matter, which was not known to the borrower, have the valid deed of trust restored and be subrogated to its security. Dorrah v. Hill, 73 Miss. 787 (19 So Rep. 961; 32 L. R. A. 631). For cases which depend upon particular facts and illustrate the right of subrogation, see Gore v. Brian, N. J. Eq. (35 Atl. Rep. 897); Featherstone v. Emerson, 14 Utah 12 (45 Pac. Rep. 713).

Sec. 254.

Priority of the right of subrogation over the right of dower. Where the owner of a tract of land has allowed the same to be incumbered by deeds of trust and judg ment liens, and while it is in that condition he intermarries, and then he and his wife make a conveyance of the land to a third party, in which she did not effectively join, being then an infant, who, out of the purchase money, pays off and discharges said liens in order to relieve the property therefrom, he is entitled to be subrogated to the rights of the parties holding said liens, and such liens are paramount to the wife's right of dower on the decease of her husband. The doctrine of subrogation is not applied in favor of one who has officiously and as a mere volunteer paid the debt of another for which neither he nor the property was answerable, but it will be applied whenever the person claiming its benefit has paid a debt for which another was primarily answerable, and which he was compelled to pay in order to protect his own rights and save his own property. The doctrine of subrogation is that one who has the right to pay and does pay a debt which ought to have been paid by another is entitled to exercise all the remedies which the creditor possessed against that other, and to indemnity from the fund out of which should have been made the payment which he has made. Where the owner of land which is incumbered by trust liens, judgment liens, and liens for the original purchase money, which liens are paramount to the dower right of his wife in the event of his death, sells said land to a third party, who pays off and discharges these liens as a part of the purchase money, he is subrogated to the rights of said lienors, and, if said liens absorb the entire

purchase money, said vendor's widow is not entitled to dower out of said purchase money. Blair v. Mounts, 41 W. Va. 706 (24 S. E. Rep. 620).

Sec. 255. Equitable control of the rights of creditors -Marshaling securities. Where a vendor retains title in himself as security for the payment of purchase money and also takes a mortgage on other realty as collateral security, the junior mortgagee of the latter property may compel the vendor to exhaust the property sold in satisfaction of his claim before resorting to the collateral security. Kent v. Williams, 114 Cal. 537 (46 Pac. Rep. 462). The aid of a court of equity can not be invoked by an execution creditor to adjudicate the priority of claims against his debtor's real estate, upon a petition which shows that such creditor has levied upon real estate of the debtor, and has not offered the same for sale but merely assumes that it cannot be sold for a sufficient sum to satisfy his claim and does not allege that the debtor has any other property. Stanton v. Catron, 8 N. M. 355 (45 Pac. Rep. 884). An equitable mortgage cannot be created by an agreement not in writing. Johnson v. Portwood, 89 Tex. 235 (34 S. W. Rep. 596). The doctrine of marshaling securities applies in favor of mechanics' lien claimants as against mortgage creditors. Gore v. Royse, 56 Kan. 771 (44 Pac. Rep.

1053).

Sec. 256.

Relief from mistakes-General principles. In order that there may be equitable relief from mistake, the mistake must be material to the transaction affecting its substance; and must itself be so important that it determines the conduct of the mistaken party. Simmons v. Palmer, 93 Va. 389 (25 S. E. Rep. 6). Equity will not help one guilty of fraud against another guilty in the same transaction. Stout v. Philippi Mf'g. & Mer. Co., 41 W. Va. 339 (23 S. E. Rep. 571; 56 Am. St. Rep. 843). The jurisdiction of equity to relieve against mutual mistakes is, in general, confined to cases where, because of such mistakes, the minds of the parties never met, and there was therefore no contract, and to cases where the contract made was not correctly expressed by the instrument evidencing it. Relief cannot be given because

of misapprehensions in regard to a collateral matter, as in regard to a fact incidentally affecting the value of the subjectmatter of the contract, there being no deception or wrongful concealment. Moore v. Scott, 47 Neb. 346 (66 N. W. Rep. 441). Equity will not relieve from mistakes to the injury of innocent third persons to whom no fault or negligence is attributable. Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190 (20 So. Rep. 255). A party who seeks to cancel a contract of sale on account of mutual mistake, must show himself prompt, ready and willing to place the other party in statu quo. Christian v. Vance, 41 W. Va. 754 (24 S. E. Rep. 596).

Sec. 257. Relief from mistakes - Particular cases. A mutual mistake of grantor and grantee is supposing land pointed out by the former to the latter to be the land conveyed, may be corrected in equity. This rule would apply whether the error was intentional or unintentional. Ezell v. Peyton, 134 Mo. 484 (36 S. W. Rep. 35). Citing, Smith v. Jordan, 13 Minn. 270 (Gil. 246); Botsford v. McLean, 45 Barb. 478; Bush v. Hicks, 60 N. Y. 298; De Peyster v. Hasbrouck, 11 N. Y. 582. If there be a meeting of the minds of both parties upon the terms of a contract, and these terms are free from ambiguity, and there be no fraud or misrepresentation, a mistake of one of the parties alone, resting wholly in his own mind, as to the identity of the subject-matter of the contract, is no ground for rescission. But in order to create a binding contract, there must be a meeting of the minds of the parties upon the terms of the contract. Stong v. Lane, 66 Minn. 94 (68 N. W. Rep. 765). Where a judicial sale and conveyance of land have been made under a void decree, a court of equity will not give affirmative relief to the person whose estate was sought to be divested unless he can show some equitable interest in the land. Hall v. Hooper, 47 Neb. 111 (66 N. W. Rep. 33). Citing, Hughes v. Housel, 33 Neb. 703 (50 N, W. Rep. 1127). A mistake in the proceedings of a probate court to sell lands of decedent to pay debts may be corrected by a proper action brought in a court having general jurisdiction. Gill v. Pelkey, 54 O. St. 384 (43 N. E. Rep. 991). Equity has jurisdiction to cancel a paper title procured

through fraud and award damages for trespass by defendants acting on the strength of the fraudulent title. Swihart v. Harless, 93 Wis. 211 (67 N. W. Rep. 413).

Sec. 258. Relief from mistakes negligently made. The rule that equity will not grant relief from mistakes resulting from the negligence of the party asking relief will not be strictly applied where no one is injured by the mistake but the party himself, and no one has changed his position by reason of the act executed through the influence of the alleged mistake. Seeley v. Bacon, N. J. Eq. (34 Atl. Rep. 139).

If a party can read, it is not open to him, after executing a deed, to insist that the terms of it were different from what he supposed them to be when he signed it. If equity will ever relieve one who has entered into a transaction under a misapprehension of its effect, when the other party merely failed to correct such misapprehension, there being no such peculiar relations between the parties as to place the one who remains silent under any unusual obligation, the principle is well settled that such party who remains silent must himself have appreciated the legal effect of the transaction, and must have known that the other was acting in ignorance of such effect. Eldridge v. Dexter & P. R. Co., 88 Me. 191 (33 Atl. Rep. 974).

Sec. 259. Relief from mistakes as to quantity of land. Equity will relieve a purchaser of land from a mistake as to quantity, and every sale' of land where the quantity is referred to in the contract and where the contract does not plainly indicate that the sale was intended to be a sale in gross, must be presumed to be a sale per acre. Boschen's Ex'x v. Jurgen's Ex'r, 92 Va. 756 (24 S. E. Rep. 390). Where there has been a gross mistake as to quantity in a deed of conveyance, and the complaining party has not been guilty of any fraud or culpable negligence, nor has otherwise impaired the equities resulting from the mistake, he will be entitled to relief from the technical, legal effect of his contract whether it be executed or executory. This principle is applied whether the sale be "by the acre or a "sale in gross." In a sale by the acre much less variation from the quantity

intended to be conveyed would afford evidence of the mistake which would justify interposition of a court of equity to correct it, than would be sufficient in case of a "sale in gross." This equitable relief may be granted to a vendee in an action by the vendor to foreclose the vendor's lien. Skinner v. Walker, 98 Ky. 729 (34 S. W. Rep. 233). Where the deed contains a mutual mistake affecting the quantity of the land conveyed, the grantor has the right to have the deed reformed, whether the grantee at the time of delivery knew of the mistake or not. Dulo v. Miller, 112 Ala. 687 (20 So. Rep.

981).

Sec. 260. Relief from mistakes of law. Equity will grant relief against mistakes of law. Wilson v. Ott, 173 Pa. 253 (34 Atl. Rep. 23; 51 Am. St. Rep. 767). The court say: "In 15 Am. & Eng. Enc. Law, 644, it is said: 'It will be seen by reviewing the authorities cited in the notes, that the general rule that equity will not correct a mistake of law has been so greatly modified that considerable doubt seems to exist as to whether it can now be called a general rule.' In an able article in 23 Am. Jur. 146, on the subject of mistakes of law, the author says: 'On the whole, in view of all the cases on the subject, of the language used in them, and the circumstances under which it was used, we cannot but regard the actual preponderance of authority as unequivocally in favor of the doctrine that mistakes of law may afford good cause for relief.' The excerpt from the Encyclopedia presents a conclusion which, we think, is fairly deducible from a review of the cases to which it refers, and the excerpt from the article in the Jurist appears to be in substantial accord with it. As they are based on a review of the cases involving a consideration of the effect of a mistake of law, they are worthy of notice as showing the trend of judicial thought on the subject, and the reluctance of the courts to sanction gross injustice under the claim that equity will not relieve against such a mistake." It is only in special cases that equity will relieve a party from the consequences of a pure mistake of law; and it will not do so when the opposite party is blameless in the premises and the parties cannot be replaced in their former