It is a principle of equity that when an instrument is drawn and
executed which professes or is intended to carry into execution an
agreement, whether in writing or by parol, previously entered into
but which by mistake of the draftsman either in fact or in law does
not fulfill or which violates the manifest intention of the parties
to the agreement, equity will correct the mistake so as to produce
a conformity of the instrument to the agreement.
The execution of instruments fairly and legally entered into is
one of the peculiar branches of equity jurisdiction, and a court of
equity will compel a delinquent party to perform his agreement
according to the terms of it and to the manifest intention of the
parties.
So if the mistake exists not in the instrument which is intended
to give effect to the agreement, but in the agreement itself, and
is clearly proved to have been the result of ignorance of some
material fact, a court of equity will in general grant relief
according to the nature of the particular case in which it is
sought.
If an agreement was not founded on a mistake of any material
fact, and if it was executed in strict conformity with itself, it
would be unprecedented for a court of equity to decree another
security to be given different from that which had been agreed upon
or to treat the case as if such other security had in fact been
agreed upon and executed.
Courts of equity may compel parties to execute their agreements,
but it has no power to make agreements for them. The death of one
of the parties and the consequent inefficiency of the security
selected, intended to be valid and complete, but which was not so,
will not give the right of interference.
Page 26 U. S. 2
A mistake arising from ignorance of law is not a ground for
reforming a deed founded on such mistake except in some few cases,
and those of peculiar characters.
If the obligee of a joint bond by two or more agrees with one
obligor to release him, and does so, and all the obligors are
thereby discharged at law, equity will not afford relief against
the legal consequences, although the release was given under a
manifest misapprehension of the legal effect of it in relation to
the other obligors.
It seems that there may be cases in which a court of equity will
relieve against a plain mistake arising from ignorance of law. But
where parties, upon deliberation and advice, reject one species of
security and agree to select another under a misapprehension of the
law as to the nature of the security thus selected, a court of
equity will not, on the ground of misapprehension and the
insufficiency of the security, in consequence of a subsequent event
not foreseen, direct a security of a different character to be
given or decree that to be done which the parties supposed would
have been effected by the instrument which was finally agreed upon.
The court would be much less disposed to interfere in such a case
in favor of a particular creditor against the general creditors of
an insolvent estate.
The appellant filed a bill on the chancery side of the Circuit
Court of the United States for the District of Rhode Island setting
forth that in January, 1820, Lewis Rousmaniere obtained from him
two loans of money, amounting, together to $2,150, and at the time
the first loan was made, Rousmaniere offered to give, in addition
to his notes, a bill of sale or mortgage of his interest in the
brig
Nereus, then at sea, as a collateral security for the
repayment of the money. A few days after the delivery of the first
note, dated 11 January, 1820, he executed a power of attorney
authorizing the plaintiff to make and execute a bill of sale of
three-fourths of the
Nereus to himself or to any other
person, and in the event of the loss of the vessel to collect the
money which should become due on a policy by which the vessel and
freight were insured. In the power of attorney it was recited that
it was given as collateral security for the payment of the notes
and was to be void on their payment, on the failure of which the
plaintiff was to pay the amount and all expenses and to return the
residue to Rousmaniere. On 21 March, 1821, an additional sum of
$700 was loaned, for which a note was taken and similar power of
attorney given to sell his interest in the schooner
Industry, this vessel being also still at sea.
On 5 May, 1820, Rousmaniere died intestate and insolvent, having
paid $200 on account of the notes, and the plaintiff gave notice of
his claim to the commissioners of insolvency appointed under the
authority of the Insolvent Law of Rhode Island. The plaintiff in
his bill alleged that, on the return of the
Nereus and
Industry, he took possession
Page 26 U. S. 3
of them, and offered the interest of the intestate in them for
sale, and the defendants having forbade the sale, this bill was
brought to compel them to join in it.
To this bill the defendants demurred and their demurrer was
sustained in the circuit court, but leave was given to the
plaintiff to amend. An amended bill was then filed in which it was
stated that it was expressly agreed between the parties that
Rousmaniere was to give specific security on the
Nereus
and
Industry, and that he offered to execute a mortgage on
them. Counsel was consulted on the subject, who advised that the
power of attorney which was actually executed should be taken in
preference to a mortgage, because it was equally valid and
effectual as a security and would prevent the necessity of changing
the papers of the vessels or of taking possession of them on their
return to port. These securities were, it was alleged, executed
with a full belief that they would and with intention that they
should give to the plaintiff, as full and perfect as security as
would be given by a mortgage.
The defendants having also demurred to the amended bill, the
circuit court decided in favor of the demurrer and dismissed the
bill, and an appeal was entered to this Court. At the February
session, 1823, this Court considered that the appellant might be
entitled to the relief prayed for in equity, but the respondents
were permitted to withdraw their demurrer and to file an answer in
the court below.
21 U. S. 8 Wheat.
174. The answer of the defendants admits the loans of money and the
delivery of the promissory notes, and that but $200 was paid before
the death of the intestate. The execution of the powers of attorney
was also admitted, but it was denied that possession of the vessels
was taken by the appellant, and they alleged their resistance of
the attempt to take possession of them.
The answer also asserts ignorance of any agreement for a
specific lien on the vessels except that imported by the language
of the powers of attorney; that they had heard and believed that
the appellant meant to be concerned as a partner in the voyage of
one of the vessels, which was relinquished, and that afterwards he
offered to loan the money on security, upon which the intestate
offered to give a mortgage, but the appellant preferred taking the
powers of attorney to avoid inconvenience, and took the powers of
attorney by advice of counsel. The answer also states that a bill
of sale of the vessels, dated the day before the death of the
intestate, by which the vessels were intended to be conveyed to one
Bateman, and which the respondents state they had heard and
believed was intended to be executed on the evening of that day.
The answer also alleges the insolvency of Rousmaniere
Page 26 U. S. 4
and that it existed a long time before his death, which they
assert must have been known to the appellant, and that the
intestate resorted to improper modes to keep up his credit.
The evidence taken in the case consisted of the deposition of
Mr. Hazard, the counsel who drew the papers, and in which he stated
that they were intended by both parties to have the effect of a
specific lien or mortgage, and he advised them they would have that
effect, and also the deposition of Mr. Merchant to show that the
appellant admitted that the motive by which he was induced to make
the loan was to compensate Rousmaniere for the disappointment
sustained by his not uniting with him in a voyage of one of his
vessels, and accordingly an agreement was made by which the
appellant was to let Rousmaniere have a sum of money, and that he
was to give a bill of sale of a certain vessel, but that afterwards
he refused to take the same on account of the inconvenience and
difficulties which might attend the same, and that he had consulted
with Mr. Hazard upon the subject, who told him that he could or
would draw an irrevocable power of attorney to sell, which would do
as well, or words to that effect, and which was accordingly
done.
The circuit court pronounced a decree declaring that the
appellant had no specific lien or security upon either of the
vessels and no equity to be relieved respecting them, and
dismissing the bill with costs, from which decree, an appeal was
entered to this Court.
On the part of the appellants it was contended that the decree
ought to be reversed and a decree entered for the appellant.
That the answers to the bill do not respond to the only material
facts in the cause, it being fully proved that the powers of
attorney were intended to have the effect of a specific lien, the
appellant is entitled to the relief he seeks upon the principles
laid down in the former decisions of this Court.
Page 26 U. S. 9
MR. JUSTICE WASHINGTON delivered the opinion of the Court.
This case was before this Court in the year 1823, and is
reported in
21 U. S. 8 Wheat.
174, and was then argued at great length by the counsel concerned
in it. After full consideration, it was decided that the power of
attorney given by Rousmaniere, the intestate, to the appellant Hunt
authorizing him to make and execute a bill of sale of three-fourths
of the
Nereus and of the
Industry to himself, or
to any other person, and in the event of their being lost, to
collect the money which should become due under a policy upon them
and their freight was a naked power not coupled with an interest,
which, though irrevocable by Rousmaniere in his lifetime, expired
on his death.
That this species of security was agreed upon and given under a
misunderstanding by the parties, of its legal character was
conceded in the argument of the cause by the bar and bench, and the
second question for the consideration of the court was whether a
court of equity could afford relief in such a case by directing a
new security of a different character to be given or by decreeing
that to be done which the parties supposed would have been effected
by the instrument agreed upon. After an examination of the cases
applicable to the general question, it was stated by THE CHIEF
JUSTICE, who delivered the opinion of the Court, that none of them
asserted the naked principle that relief could be granted on the
ground of ignorance of law or decided that a plain and acknowledged
mistake in law was beyond the reach of a court of equity. The
conclusion to which he came is expressed in the following
terms:
"We find no case which we think precisely in point, and are
unwilling, where the effect of the instrument is acknowledged to
have been entirely misunderstood by both parties, to say that a
court of equity is incapable of affording relief. "
Page 26 U. S. 10
The decree was accordingly reversed, but the case being one in
which creditors were concerned, the Court, instead of giving a
final decree on the demurrer in favor of the plaintiff, directed
the cause to be remanded that the circuit court might permit the
defendants to withdraw their demurrer and to answer the bill.
After the cause was returned to that court, the demurrer was
withdrawn and an answer was filed in which the defendants, after
admitting the loans mentioned in the bills by the plaintiff to
their intestate and the notes given for the same by the latter and
their nonpayment, assert their ignorance of any agreement between
the plaintiff and their intestate that the former should have a
specific security, other than the powers of attorney, to sell
vessels and to collect the proceeds or the amount of the policies
in case they should be lost, but express their belief that the
powers of attorney were selected by the plaintiff in preference to
the other securities which were offered by the intestate. The
answer further states that the estate of Rousmaniere is greatly
insolvent and had been so before his death; that the plaintiff had
exhibited and proved his demand as stated in his bill before the
commissioners of insolvency duly appointed upon the estate of
Rousmaniere, and that his dividend thereon declared, or to be
declared, the defendants were and would be ready to pay according
to law.
The principal deposition taken in the cause is that of Benjamin
Hazard, counselor at law, who deposes that he drew the powers of
attorney, annexed to the original bill. That on the day the first
power was executed, Hunt and Rousmaniere came to his office, when
the latter stated that the former had loaned or agreed to loan to
him, a sum of money upon security to be given by him on his
interest in the brig
Nereus, and that he was desirous the
security should be as ample and available to Hunt as it could be
made. That he wished and was ready to give a bill of sale of the
property or a mortgage on it or any other security which Mr. Hunt
might prefer. Both the parties declared that they had called upon
the witness to request him to draw the writings and to obtain his
opinion as to the kind of instrument which would give the most
perfect security to the lender. That the deponent then told the
parties that a bill of sale or mortgage would be good security, but
that an irrevocable power of attorney such as was afterwards
executed would be as effectual and good security as either of the
others, and would prevent the necessity of changing the vessel's
papers and of Hunt's taking possession of the vessel upon her
arrival from sea. That the parties then requested him to draw such
an
Page 26 U. S. 11
instrument as in his opinion would most effectually and fully
secure Mr. Hunt, and that the plaintiff frequently asked him whilst
he was drawing the power and after he had finished and read it to
the parties, if he was quite certain that the power would be as
safe and available to him as a bill of sale or mortgage, and that
upon his assurances that it was, it was then executed. The witness
then proceeds to express his opinion, from his knowledge of the
parties and from their declaration at the time, that Rousmaniere
would readily have given an absolute bill of sale of the property
or any other security which could have been asked, and that Hunt
would not have accepted the one which was afterwards executed if he
had not considered it to be as extensive and perfect a security in
all respects as an absolute bill of sale, and he adds, more
positively, that such was the understanding and agreement of both
the parties.
It appears by the testimony of this witness that he drew the
power of attorney concerning the
Industry for securing the
second loan made by the plaintiff to Rousmaniere, and that the
circumstances attending that transaction were essentially the same
as those which have been stated in respect to the first loan.
We find another deposition in the record which deserves to be
noticed, as it consists of declarations made by the plaintiff after
the powers of attorney were executed, and may serve in some measure
to explain the more positive testimony given by Mr. Hazard. This
witness, William Merchant, deposes that after the decease of
Rousmaniere, the plaintiff stated to him and to a Mr. Rhodes that
in consequence of his declining to engage in an enterprise in one
of the vessels of Rousmaniere, to which he had at one time
consented, and of the complaints of Rousmaniere on that account, he
was induced to offer to Rousmaniere a loan of money. That an
agreement was accordingly made by which he, Hunt, was to let
Rousmaniere have a certain sum on loan, and Rousmaniere was to give
him a bill of sale of a certain vessel, but that afterwards, Hunt,
reflecting that if he took that security he would have to take out
papers at the custom house in his own name, be subject to give
bonds for the vessel, and perhaps be made liable for breaches of
law committed by others, he consulted with Mr. Hazard upon the
subject, who told him that he could or would draw an irrevocable
power of attorney, to sell which would do as well, and which was
accordingly done.
The cause coming on to be heard, in the court below, and that
court being of opinion that the plaintiff had then no lien or
specific security upon these vessels and no equity to
Page 26 U. S. 12
have such lien or security created against the general creditors
of Rousmaniere, dismissed the bill, from which decree the cause has
been brought by appeal to this Court.
It must be admitted that the case, as it is now presented to the
Court, is not materially variant from that which we formerly had to
consider, except in relation to the rights of the general creditors
against the insolvent estate of a deceased debtor in opposition to
the equity which a particular creditor seeks by this bill to set
up. The allegations of the bills filed in this cause, which were,
on the former occasion, admitted by the demurrer to be true, are
now fully proved by the testimony taken in the cause.
Before proceeding to state the general question to which the
facts in this case give rise or the principles of equity which
apply to it, it will be necessary distinctly to ascertain what was
the real agreement concluded upon between the plaintiff and the
intestate, the performance of which on the part of the latter was
intended to be secured by the powers of attorney. Was it that
Rousmaniere should, in addition to his notes for the money agreed
to be loaned to him by the plaintiff, give a specific and available
security on the
Nereus and the
Industry, or was
the particular kind of security selected by the parties, and did it
constitute a part of the agreement? It is most obvious from the
plaintiff's own statement in his amended bill as well as from the
depositions appearing in the record, that the agreement was not
closed until the interview between the parties to it with Mr.
Hazard had taken place. The amended bill states that the specific
security which Rousmaniere offered to give was a mortgage of the
two vessels, for which irrevocable powers of attorney were
substituted by the advice of Mr. Hazard, and for reasons which it
would seem were approved of and acted upon by the plaintiff. From
the testimony of Mr. Merchant, it would appear that the security
proposed by Rousmaniere was a bill of sale of the vessels, which
the plaintiff declined accepting for reasons of his own,
uninfluenced by any suggestions of Mr. Hazard, who merely proposed
the powers of attorney as a substitute for the other forms of
security which had been offered by Rousmaniere. The difference
between these statements is not very material, since it is apparent
from both of them that the proposed security, by irrevocable powers
of attorney, was selected by the plaintiff and incorporated into
the agreement by the assent of both the parties. The powers of
attorney do not contain, nor do they profess to contain, the
agreement of the parties, but was a mere execution of that
agreement so far as it stipulated to give to the plaintiff a
specific security on the two vessels in the mode selected and
approved of by the parties, to
Page 26 U. S. 13
which extent it was a complete consummation of the agreement.
Such was the opinion of this Court upon the former discussion of
this cause in the year 1823, and such is its present opinion. Upon
this state of the case, the general question to be decided is the
same now that it formerly was, and is that which has already been
stated.
There are certain principles of equity applicable to this
question which as general principles we hold to be
incontrovertible. The first is that where an instrument is drawn
and executed which professes or is intended to carry into execution
an agreement, whether in writing or by parol, previously entered
into, but which, by mistake of the draftsman either as to fact or
law does not fulfill or which violates the manifest intention of
the parties to the agreement, equity will correct the mistake so as
to produce a conformity of the instrument to the agreement. The
reason is obvious -- the execution of agreements fairly and legally
entered into is one of the peculiar branches of equity
jurisdiction, and if the instrument which is intended to execute
the agreement be from any cause insufficient for that purpose, the
agreement remains as much unexecuted as if one of the parties had
refused, altogether, to comply with his engagement; and a court of
equity will, in the exercise of its acknowledged jurisdiction,
afford relief in the one case as well as in the other by compelling
the delinquent party fully to perform his agreement according to
the terms of it and to the manifest intention of the parties. So if
the mistake exists not in the instrument which is intended to give
effect to the agreement, but in the agreement itself, and is
clearly proved to have been the result of ignorance of some
material fact, a court of equity will in general grant relief
according to the nature of the particular case in which it is
sought.
Whether these principles or either of them apply to the present
case must, of course, depend upon the real character of the
agreement under consideration. If it has been correctly stated, it
follows that the instrument by means of which the specific security
was to be given was selected by the parties to the agreement, or
rather by the plaintiff, Rousmaniere having proposed to give a
mortgage or bill of sale of the vessels which the plaintiff, after
consideration and advice of counsel, thought proper to reject for
reasons which were entirely satisfactory to himself. That the form
of the instrument so chosen by the plaintiff, and prepared by the
person who drew it conforms in every respect to the one agreed upon
is not even asserted in the bill or in the argument of counsel. The
avowed object of the plaintiff was to obtain a valid security, but
in such a manner as that the legal interest in the property should
remain with
Page 26 U. S. 14
Rousmaniere, so that the plaintiff might be under no necessity
to take out papers at the custom house in his own name, and might
not be subject to give bonds for the vessels or to liabilities for
breaches of law committed by those who were entrusted with the
management of them.
That the general intention of the parties was to provide a
security as effectual as a mortgage of the vessels would be can
admit of no doubt, and if such had been their agreement, the
insufficiency of the instruments to effect that object which were
afterwards prepared would have furnished a ground for the
interposition of a court of equity which the representatives of
Rousmaniere could not easily have resisted. But the plaintiff was
not satisfied to leave the kind of security which he was willing to
receive undetermined, having finally made up his mind by the advice
of his counsel not to accept of a mortgage or bill of sale in
nature of a mortgage. He thought it safest, therefore, to designate
the instrument, and, having deliberately done so, it met the view
of both parties and was as completely incorporated into their
agreement as were the notes of hand for the sum intended to be
secured. In coming to this determination, it is not pretended that
the plaintiff was misled by ignorance of any fact connected with
the agreement which he was about to conclude. If then the agreement
was not founded in a mistake of any material fact, and if it was
executed in strict conformity with itself, we think it would be
unprecedented for a court of equity to decree another security to
be given not only different from that which had been agreed upon,
but one which had been deliberately considered and rejected by the
party now asking for relief, or to treat the case as if such other
security had in fact been agreed upon and executed. Had
Rousmaniere, after receiving the money agreed to be loaned to him,
refused to give an irrevocable power of attorney, but offered to
execute a mortgage of the vessels, no court of equity could have
compelled the plaintiff to accept the security so offered. Or if he
had totally refused to execute the agreement and the plaintiff had
filed his bill praying that the defendant might be compelled to
execute a mortgage instead of an irrevocable power of attorney,
could that court have granted the relief specifically asked for? We
think not. Equity may compel parties to perform their agreements
when fairly entered into according to their terms, but it has no
power to make agreements for parties and then compel them to
execute the same. The former is a legitimate branch of its
jurisdiction, and in its exercise is highly beneficial to society.
The latter is without its authority, and the exercise of it would
be not only an usurpation of power, but would be highly mischievous
in its consequences.
Page 26 U. S. 15
If the court could not have compelled the plaintiff to accept or
Rousmaniere to execute any other instrument than the one which had
been agreed upon between them, the case is in no respect altered by
the death of the latter and the consequent inefficiency of the
particular security which had been selected, the objection to the
relief asked for being in both cases the same -- namely that the
court can only enforce the performance of an agreement according to
its terms and to the intention of the parties, and cannot force
upon them a different agreement. That the intention of the parties
to this agreement was frustrated by the happening of an event not
thought of, probably, by them or by the counsel who was consulted
upon the occasion is manifest. The kind of security which was
chosen would have been equally effectual for the purpose intended
with a mortgage had Rousmaniere lived until the power had been
executed, and it may therefore admit of some doubt, at least,
whether the loss of the intended security is to be attributed to a
want of foresight in the parties of to a mistake of the counsel in
respect to a matter of law. The case will, however, be considered
in the latter point of view.
The question, then, is ought the court to grant the relief which
is asked for upon the ground of mistake arising from any ignorance
of law? We hold the general rule to be that a mistake of this
character is not a ground for reforming a deed founded on such
mistake, and whatever exceptions there may be to this rule, they
are not only few in number but they will be found to have something
peculiar in their characters.
The strongest case which was cited and relied upon by the
appellant's counsel was that of
Landsdown v. Landsdown,
reported in Mosely. Admitting for the present the authority of this
case, it is most apparent from the face of it that the decision of
the court might well be supported upon a principle not involved in
the question we are examining. The subject which the court had to
decide arose out of a dispute between an heir at law and a younger
member of the family who was entitled to an estate descended, and
this question the parties agreed to submit to arbitration. The
award being against the heir at law, he executed a deed in
compliance with it, but was relieved against it on the principle
that he was ignorant of his title.
If the decision of the court proceeded upon the ground that the
plaintiff was ignorant of the fact that he was the eldest son, it
was clearly a case proper for relief upon a principle which has
already been considered.
If the mistake was of his legal rights as heir at law, it is not
going too far to presume that the opinion of the court
Page 26 U. S. 16
may have been founded upon the belief that the heir at law was
imposed upon by some unfair representations of his better informed
opponent, or that his ignorance of a legal principle so universally
understood by all, where the right of primogeniture forms a part of
the law of descents, demonstrated a degree of mental imbecility
which might well entitle him to relief. He acted, besides, under
the pressure of an award which was manifestly repugnant to law, and
for aught that is stated in this case, this may have appeared upon
the face of it.
But if this case must be considered as an exception from the
general rule which has been mentioned, the circumstances attending
it do not entitle it, were it otherwise unobjectionable, to be
respected as an authority but in cases which it closely resembles.
There is a class of cases which it has been supposed forms an
exception from this general rule, but which will be found, upon
examination, to come within the one which was first stated. The
cases alluded to are those in which equity has afforded relief
against the representatives of a deceased obligor in a joint bond,
given for money, lent to both the obligors, although such
representatives were discharged at law. The principle upon which
these cases manifestly proceed is that the money being lent to
both, the law raises a promise in both to pay, and equity considers
the security of the bond as being intended by the parties to be
coextensive with this implied contract by both to pay the debt. To
effect this intention, the bond should have been made joint and
several, and the mistake in the form by which it is made joint is
not in the agreement of the parties, but in the execution of it by
the draftsman. The cases in which the general rule has been adhered
to are, many of them, of a character which strongly test the
principle upon which the rule itself is founded. Two or three only
need be referred to. If the obligee in a joint bond, by two or
more, agree with one of the obligors to relieve him from his
obligation and does accordingly execute a release by which all the
obligors are discharged at law, equity will not afford relief
against this legal consequence, although the release was given
under a manifest misapprehension of the legal effect of it in
relation to the other obligors. So in the case of
Worral v.
Jacob, 3 Merv. 271, where a person having a power of
appointment and revocation, and, under a mistaken supposition that
a deed might be altered or revoked, although no power of revocation
had been reserved, executed the power of appointment without
reserving a power of revocation, the court refused to relieve
against the mistake.
The case of
Lord Irnham v. Child, 1 Bro.C.C. 92, is a
very strong one in support of the general rule, and closely
Page 26 U. S. 17
resembles the present in most of the material circumstances
attending it. The object of the suit was to set up a clause
containing a power of redemption in a deed granting an annuity
which, it was said, had been agreed upon by the parties, but which,
after deliberation, was excluded by consent from a mistaken opinion
that it would render the contracts usurious. The court,
notwithstanding the omission manifestly proceeded upon a
misapprehension of the parties as to the law, refused to relieve by
establishing the rejected clause. It is not the intention of the
Court in the case now under consideration to lay it down that there
may not be cases in which a court of equity will relieve against a
plain mistake, arising from ignorance of law. But we mean to say
that where the parties, upon deliberation and advice, reject one
species of security and agree to select another under a
misapprehension of the law as to the nature of the security so
selected, a court of equity will not, on the ground of such
misapprehension and the insufficiency of such security in
consequence of a subsequent event, not foreseen, perhaps, or
thought of, direct a new security of a different character to be
given, or decree that to be done which the parties supposed would
have been effected by the instrument which was finally agreed
upon.
If the court would not interfere in such a case generally, much
less would it do so in favor of one creditor against the general
creditors of an insolvent estate whose equity is at least equal to
that of the party seeking to obtain a preference, and who in point
of law stand upon the same ground with himself. This is not a bill
asking for a specific performance of an agreement to execute a
valid deed for securing a debt, in which case the party asking
relief would be entitled to a specific lien, and the court would
consider the debtor as a trustee for the creditor of the property
on which the security was agreed to be given. The agreement has
been fully executed, and the only complaint is that the agreement
itself was founded upon a misapprehension of the law, and the
prayer is to be relieved against the consequences of such mistake.
If all other difficulties were out of the way, the equity of the
general creditors to be paid their debts equally with the plaintiff
would, we think, be sufficient to induce the court to leave the
parties where the law has placed them.
The decree is to be affirmed with costs.
