Evants v. Adm'r and Heirs of Strode.

justice. It remains to be seen whether the opinion then entertained is the law of the case.

The allegations of the bill were, that, by the contract the complainant made with the intestate, ho was entitled to a deed, with covenants of warranty, for the lands; that the administrator of the intestate, by virtue of the power conferred upon him by the court of common pleas, undertook to make such a conveyance; but, by mistake, omitted to insert a clause of warranty, and represented to the complainant that the deed was in pursuance of the order of the court of common pleas; and the complainant being ignorant of the effect of the words used, accepted the deed, supposing, if evicted, he had a complete remedy upon it, over against the heirs. These averments, in the bill, are admitted by the demurrer; and does the case present grounds for relief in equity? If there was a palpable mistake of fact in the omission of a clause of warranty, which both the complainant and administrator designed to insert, and supposed was inserted, the case would be within one of the most familiar heads of equity jurisdiction. [487 But it is not so. The parties both knew the terms, and all the terms, used in the conveyance; both supposed it was in conform ity with the authority conferred upon the administrator in pursuance of the agreement, and, in case of an eviction, gave the complainant a right of action upon it against the heirs at law to the extent of the injury, so far as they came into the possession of the assets of the estate.

There was, then, a clear mistake-an error of opinion—as to the legal operation and effect of the words used; and this mistake, it must be admitted, is as fatal to the complainant, and inflicts upon him as essential and unjust an injury as though the parties had believed an actual clause of warranty, in proper form, was inserted in the deed. He has paid his money for his land; he has been evicted by title paramount; and ordinary justice requires he should be remunerated from the property of the intestate. It can not be denied, however, that the mistake in this case is a mistake of law, and if the complainant has a remedy in equity, it must be on the broad principle that, in this peculiar class of cases, such mistakes are relievable. The analogy is strong between the circumstances of this case and that of Hunt v. Rousmanier's Adm'r, in 8 Wheat. 174, to which we had occasion to refer in the case of McNaughton et al. v. Partridge et al., at the

Evants v. Adm'r and Heirs of Strode.

present term, ante, page 223. The rule is, in that case, distinctly and unequivocally asserted that where an instrument fails to carry out the intention of the parties, by reason of a mistake in the effect of the terms employed by the draftsman, there equity will relieve; and the chief justice, in giving the opinion of the Supreme Court of the United States, reviews all the authorities, and lays down the rule that, under such circumstances, a sheer mistake of law is relievable. The same case was again before the same court, and is reported in 1 Pet. 14; and the same doctrine, in this class of cases, is again maintained. In the case of Champlin v. Laytin, 1 Edw. 467, cited in Hill. Abr. 146, the superior court of the city of New York uses this language: "A contract 488] entered into, under a mutual misconception of legal rights, amounting to a mistake of law in the contracting parties, by which the object of it can not be accomplished, is as liable to be set aside or rescinded as a contract founded in mistake of matters of fact." In the case of Drew v. Clarke, Cooke, 374, 380, it is said: "Where a contract is executed under a mistake, in point of law, which mistake is produced by the representations of one of the parties, the other may be relieved, as well as if the mistake was as to matter of fact." 1 Hill. Abr. 146. In 2 Bibb, 449, it is said, however, that "the facts being understood, erroneous deductions of law afford no ground for relief." Ib. 168. The same doctrine is maintained in 1 Johns. Ch. 516; 2 Ib. 51, and 6 Rand. 594. But where different rules of action are laid down, by different respectable tribunals, we ought to adhere to those which are, in our view, most consonant to the general analogies of the law, most conformable to reason, and agreeable to the ends of justice. In our view these require, in the class of cases now before us, that the presumption that every man knows the law-the principle on which some of the cases are founded-should be permitted to be rebutted by proof, and relief granted against a mistake of law.

But it is said, in this case, the only relief which can be afforded would be the correction of the instrument, to conform to the intention of the parties; in other words, the correction of the deed by the insertion of a clause of warranty. This, if it might be effected, would produce more extended and expensive litigation, and the remedy would not, therefore, be as complete and adequate. We have now all the parties before us; can settle all their rights; prevent further litigation, and do complete justice.

Creed v. Commercial Bank of Cincinnati.

It is urged, also, that if the deed was not executed and delivered in pursuance of the contract, the contract is not merged by the delivery of the deed, and the remedy is upon it, against the administrator, to recover back the consideration for the land. It may, however, be answered that in such an action, if the administrator, as such, be in esse, the complainant could not recover the expenses of the ejectment, and the remedy *would be [489 incomplete; and that, at law, the deed being delivered, although not executed according to the agreement, the defendant would show its acceptance and bar a recovery; for, at law, the deed being accepted, the complainant could not avail himself of any correction of the mistake, and at law the delivery and acceptance of the deed would, ipso facto, be a merger of the agreement.

On the whole, a majority of the court have come to the conclusion that the Supreme Court did err in sustaining the demurrer, and in dismissing the complainant's bill, and that the decree of the Supreme Court should be reversed.

Judgment reversed.

JOHN CREED V. THE COMMERCIAL BANK OF CINCINNATI.

The Commercial Bank of Cincinnati has no right, under its charter, to take, "upon banking principles and usages," more interest than six per centum per annum, in advance, on its loans and discounts.

If more be taken, the note or bill on which it is taken is void.

If an erroneous charge be given to the jury, on an abstract proposition, or on a point entirely out of any case made by the evidence, and the verdict can be supported by the proof made, the judgment will not be reversed.

THIS is a writ of error to the Supreme Court of the county of Ross.

The case was elaborately argued by T. EWING and A. G. THURMAN, for the plaintiff in error, and by CREIGHTON & GREEN, and H. STANBERY, for the defendant in error. The points made will be found in the opinion of the court.

WOOD, J. This is a writ of error to the Supreme Court of the

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Creed v. Commercial Bank of Cincinnati.

county of Ross, made returnable in bank. Its object is the rc490] versal of a judgment of the Supreme Court, affirming *that of the common pleas, on a like writ of error, in a suit in which a recovery was had in the latter tribunal, by the defendants, against the plaintiff in error, for more than $17,000.

The amount of this recovery, alone, is sufficient to indicate its importance. It is, however, of little moment, in comparison with the rights and interests of the whole moneyed corporations of the state, and their debtors, when the extent is considered to which they will be affected, if not directly, at least indirectly, by a decision in the highest judicial tribunal known to our law. Such adjudication must, of course, become the rule of action, in all future cases which may arise, where the facts are substantially the same, and they are, at the present moment, believed to embrace evidences of claim to a very great extent.

We have, therefore, endeavored to bring all our energy into this investigation, to understand the facts, to apply the law, as we are enabled to find it exists, both from our own researches and the lights afforded us by the counsel, who not only prosecute, but also defend, with ability and zeal. Amidst the storms of party conflict, and the commotions incident to party animosity, originating, whether justly or unjustly, doubtless, in an honest conviction of the hostility of banks to the welfare of the community, if we have been able to hold the scales of justice with a firm and steady hand, our duty is performed, and we are not responsible for the result.

The papers in this case are voluminous, but the important inquiry is within a narrow sphere, and embraces nothing intricate or difficult of solution.

The question is, did the court of common pleas err in its proceedings, in the rendition of the judgment affirmed by the Supreme Court? If so, it follows, as a necessary result, that the judgment must be reversed. Or, in other words, did the Supreme Court err in the affirmance of that judgment? That it did err is the only error assigned, and in stating the proposition in either alternative, the record spreads before us the same ground of inquiry.

491] *The action was assumpsit, founded on four bills of exchange; the declaration containing also the common money counts. The first of these bills bears date at Cincinnati,

Creed v. Commercial Bank of Cincinnati.

August 1, 1837, at sixty days' date, drawn by Cox and Eckart, on J. Cox, for $2,000, payable at the Bank of Louisville, to the order of John Creed, and by him indorsed to the Commercial Bank.

The second bill is by the same drawers, on J. Cox, of the same date, August 1, 1837, at the same place, for $3,000, at ninety days' date, payable at the Bank of Kentucky, Louisville, to the order of Creed, and by him indorsed to the Commercial Bank.

The third bill is by the same drawers, on John Cox, New York, bearing the same date, at the same place, for $10,000, payable at four months, at the Bank of America, New York, to the order of George F. Ball, indorsed to Creed, and by him to the Commercial Bank.

The fourth is drawn by Cox and Eckart, on John Cox, New York, dated Cincinnati, January 30, 1838, for $5,829.47, at four months, payable at the Bank of America, New York, to the order of John Creed, and by him indorsed, in like manner, to the Commercial Bank.

To the declaration the plaintiff in error filed the plea of the general issue, and the cause was submitted to the jury, in the court of common pleas. A bill of exceptions was taken, during the progress of the trial, by the counsel for the plaintiff in error, and to that we must look, exclusively, for the history of the case, to sustain the assignment of error, for, aside from this, there is no error in the record.

To this bill of exceptions we shall only refer for the important facts on which our conclusions are based, and leave the residue for a more convenient season, and for those whose tastes are curious in judicial history, to peruse at leisure, and this of necessity, for it contains twenty-three pages of closely written folio! It appears from it, the ground relied upon as a defense, in the court of common pleas, by the now plaintiff in error, was, that there was between the Commercial Bank and the drawers, at the [492 time of the sale, or discount, of these bills, some corrupt agree. ment or understanding, or some shift or device, by which more interest than at the rate of six per centum per annum, in advance, was reserved by the bank, as interest, for the use or loan of its money; and assuming this as proved, it was then claimed, and is again urged, that these bills, thus bought or discounted, were void from a defect of power, in the defendants in error, to enter into any such contract. The Bank of Chillicothe v. Swayne et al., 8