Ethridge, J.,
delivered the opinion of the court.
(After stating the facts as above.) The question as to whether this bill is a bill of review, or whether it is an original suit under the head of mistake, accident, and fraud, arises for consideration. The chancellor’s view was, that it was a bill of review, and that it was barred by the two-year statute, and would expire in two years from the date of the decree, in September, 1909. It may be stated, generally, that a bill of review is one filed to procure an examination and reversal of the decree, after its enrollment, for some mistake appearing on the face of the papers in the case or from some fact arising subsequent to the original decision which would change the status of the parties’ rights. In Vaughan y. Gutrer, 49 Miss. 782, this court, discussing a question similar to this said :
“With respect to the first question, it is said in the books that a bill of review can only be brought upon error in law, appearing on the face of the decree without further examination of matters of fact, or upon some new matter, which has been discovered after the decree, and could not possibly have been used when the decree was made. 2 Daniell’s Ch. Pr., 1576. If the bill is filed, as in this case, on the ground of new matter, discovered since the decree, it must be by the special leave of the court, first obtained for that purpose. 2 Daniell’s Ch. Pr. 1577; Storey’s Eq. Plead. 379, par. 404.”
See, also, 16 Cyc. 532; Enochs v. Harrelson, 57 Miss. 465.
It is not pretended in this case that the fact or facts occurred subsequent to the decree rendered, but that the fact existed at that time, but did not appear and were [232]*232not known at tlie time by tbe parties to the suit. If this suit was a bill of review we think that complainants would be barred so far as any of them, except the minor, was concerned, and that the fact that one was a minor would not aid the ones against whom the two-year statute had expired. The right of each to take appropriate action, to bring a bill of review, must be exercised by such party within the two years.. It is true that the minor, on reaching majority, may bring suit that would cause tbe whole partition to be overturned and corrected; but only such party could bring the suit. The ones who had let the statute expire could not initiate the suit, though they might consent to or j oin in it.
However, in our opinion, this is an original suit in equity, and not a bill of review. It is founded on the doctrine of mistake. One of the original heads of equity jurisdiction is fraud, accident, and mistake, and this is one of the fundamental jurisdictions of equity. We think the jurisdiction of equity in cases of mistake is as broad and coextensive as its jurisdiction in'fraud. Where all the parties in a suit and all the officers of a court, and the court itself, acting on and moved by a belief in a certain state of fact's, enters a judgment on such facts which would be proper, but which afterwards, by reason of the mistake, would work injustice and hardship upon some of tbe parties, equity has and should have power to apply the proper remedy. Fraud vitiates a judgment caused by the active agency of some party to the proceeding, as the court is misled and deceived as to the facts upon which it attempts to administer the law, and mistake is equally efficacious in procuring a wrong, though all the parties are free from turpitude in procuring the judgment. The evidence amply warrants the finding of facts by the chancellor as to what the parties understood in the original proceeding, and it would be not only inequitable, but a gross wrong, to permit a judgment to stand which is clearly founded upon mistaken facts, if no innocent person would suffer by correcting the mis[233]*233take. In the case of Webster v. Skipwith, 26 Miss. 341, which was a suit to annul a judgment, the court, discussing the question, said:
“In the application of'the remedial powers of a court of equity to cases of this nature, they appear to have acted rather upon the intrinsic equity of the particular case, than upon any strict rule limiting’ and restraining the powers so as to prevent them from doing equity. Judge Storey lays down the rule thus: ‘That in all cases whereby accident, mistake, or fraud, or otherwise, a party has an unfair advantage in proceeding in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage.’ 2 Storey’s Eq. Jur. par. 885.”
Judge Storey has the following to say, in volume 1, section 166, Equity Jurisprudence (4th Ed.):
“It (equity) will always interfere in cases of mistake in judgment and other matters of record, injurious to the rights of the party.”
In 30 Cyc. 304, 305, the rule is laid down as follows:
“Belief may always be sought and secured by an independent suit in equity, for any cause justifying relief in equity from any other judgment affecting the title or the right to the possession of real property, such as mistake or fraud resulting in inequitable allotment.”
In Fore v. Foster’s, Adam’s, 86 Va. 104, 9 S. E. 497, the Virginia court held that equity had jurisdiction to grant relief against an erroneous decision by which one party received a considerable portion more, in a portion suit, than it was entitled to, and another party received an amount less than he should have received. The court says:
“The bill in this case is an original bill, to correct a mistake of fact, and falls within the general rule that an act done or contract made under a mistake or ignorance of a material fact is voidable and reviewable in [234]*234equity; and this rule applies, not only to cases where there has been a studied suppression or concealment of facts by the other side which would amount to a fraud, but also to many cases of innocent ignorance and mistake on both sides; and it is a material mistake, involving a large sum of money or a large tract of land, as it may be regarded.”
In Sullivan v. Lumsden, 118 Cal. 664, 50 Pac. 777, a California case, in which an original bill was filed in equity to correct an error of allotment in a partition suit, the court said in part:
“The same rule applies to mistake, and to judgments or decrees in partition as well as other judgments. ‘A final judgment or decree in partition is not more exempt from the interference and controlling power of courts of equity than are final judgments and decrees in other cases. Hence such a mistake of facts, or such accident as would authorize a court of equity in (enjoining) or setting aside an ordinary judgment, will authorize it to set aside or correct a judgment or decree of partition. ... If a mistake in matters of description has been made by the commissioners in drafting their report, and has also been carried into the final judgment, it may be corrected by proceedings in equity.’ Freeman, Coten, par. 534; Smith v. Butler, 11 Or. 46, 4 Pac. 517; Marvin v. Marvin, 52 How. Prac. [N. Y.] 97; Wilbur v. Dyer, 39 Me. 169; Douglass v. Viele, 3 Sandf. Ch. 439. ‘The mistake which will justify this relief may also be the mistake of the court.
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Ethridge, J.,
delivered the opinion of the court.
(After stating the facts as above.) The question as to whether this bill is a bill of review, or whether it is an original suit under the head of mistake, accident, and fraud, arises for consideration. The chancellor’s view was, that it was a bill of review, and that it was barred by the two-year statute, and would expire in two years from the date of the decree, in September, 1909. It may be stated, generally, that a bill of review is one filed to procure an examination and reversal of the decree, after its enrollment, for some mistake appearing on the face of the papers in the case or from some fact arising subsequent to the original decision which would change the status of the parties’ rights. In Vaughan y. Gutrer, 49 Miss. 782, this court, discussing a question similar to this said :
“With respect to the first question, it is said in the books that a bill of review can only be brought upon error in law, appearing on the face of the decree without further examination of matters of fact, or upon some new matter, which has been discovered after the decree, and could not possibly have been used when the decree was made. 2 Daniell’s Ch. Pr., 1576. If the bill is filed, as in this case, on the ground of new matter, discovered since the decree, it must be by the special leave of the court, first obtained for that purpose. 2 Daniell’s Ch. Pr. 1577; Storey’s Eq. Plead. 379, par. 404.”
See, also, 16 Cyc. 532; Enochs v. Harrelson, 57 Miss. 465.
It is not pretended in this case that the fact or facts occurred subsequent to the decree rendered, but that the fact existed at that time, but did not appear and were [232]*232not known at tlie time by tbe parties to the suit. If this suit was a bill of review we think that complainants would be barred so far as any of them, except the minor, was concerned, and that the fact that one was a minor would not aid the ones against whom the two-year statute had expired. The right of each to take appropriate action, to bring a bill of review, must be exercised by such party within the two years.. It is true that the minor, on reaching majority, may bring suit that would cause tbe whole partition to be overturned and corrected; but only such party could bring the suit. The ones who had let the statute expire could not initiate the suit, though they might consent to or j oin in it.
However, in our opinion, this is an original suit in equity, and not a bill of review. It is founded on the doctrine of mistake. One of the original heads of equity jurisdiction is fraud, accident, and mistake, and this is one of the fundamental jurisdictions of equity. We think the jurisdiction of equity in cases of mistake is as broad and coextensive as its jurisdiction in'fraud. Where all the parties in a suit and all the officers of a court, and the court itself, acting on and moved by a belief in a certain state of fact's, enters a judgment on such facts which would be proper, but which afterwards, by reason of the mistake, would work injustice and hardship upon some of tbe parties, equity has and should have power to apply the proper remedy. Fraud vitiates a judgment caused by the active agency of some party to the proceeding, as the court is misled and deceived as to the facts upon which it attempts to administer the law, and mistake is equally efficacious in procuring a wrong, though all the parties are free from turpitude in procuring the judgment. The evidence amply warrants the finding of facts by the chancellor as to what the parties understood in the original proceeding, and it would be not only inequitable, but a gross wrong, to permit a judgment to stand which is clearly founded upon mistaken facts, if no innocent person would suffer by correcting the mis[233]*233take. In the case of Webster v. Skipwith, 26 Miss. 341, which was a suit to annul a judgment, the court, discussing the question, said:
“In the application of'the remedial powers of a court of equity to cases of this nature, they appear to have acted rather upon the intrinsic equity of the particular case, than upon any strict rule limiting’ and restraining the powers so as to prevent them from doing equity. Judge Storey lays down the rule thus: ‘That in all cases whereby accident, mistake, or fraud, or otherwise, a party has an unfair advantage in proceeding in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage.’ 2 Storey’s Eq. Jur. par. 885.”
Judge Storey has the following to say, in volume 1, section 166, Equity Jurisprudence (4th Ed.):
“It (equity) will always interfere in cases of mistake in judgment and other matters of record, injurious to the rights of the party.”
In 30 Cyc. 304, 305, the rule is laid down as follows:
“Belief may always be sought and secured by an independent suit in equity, for any cause justifying relief in equity from any other judgment affecting the title or the right to the possession of real property, such as mistake or fraud resulting in inequitable allotment.”
In Fore v. Foster’s, Adam’s, 86 Va. 104, 9 S. E. 497, the Virginia court held that equity had jurisdiction to grant relief against an erroneous decision by which one party received a considerable portion more, in a portion suit, than it was entitled to, and another party received an amount less than he should have received. The court says:
“The bill in this case is an original bill, to correct a mistake of fact, and falls within the general rule that an act done or contract made under a mistake or ignorance of a material fact is voidable and reviewable in [234]*234equity; and this rule applies, not only to cases where there has been a studied suppression or concealment of facts by the other side which would amount to a fraud, but also to many cases of innocent ignorance and mistake on both sides; and it is a material mistake, involving a large sum of money or a large tract of land, as it may be regarded.”
In Sullivan v. Lumsden, 118 Cal. 664, 50 Pac. 777, a California case, in which an original bill was filed in equity to correct an error of allotment in a partition suit, the court said in part:
“The same rule applies to mistake, and to judgments or decrees in partition as well as other judgments. ‘A final judgment or decree in partition is not more exempt from the interference and controlling power of courts of equity than are final judgments and decrees in other cases. Hence such a mistake of facts, or such accident as would authorize a court of equity in (enjoining) or setting aside an ordinary judgment, will authorize it to set aside or correct a judgment or decree of partition. ... If a mistake in matters of description has been made by the commissioners in drafting their report, and has also been carried into the final judgment, it may be corrected by proceedings in equity.’ Freeman, Coten, par. 534; Smith v. Butler, 11 Or. 46, 4 Pac. 517; Marvin v. Marvin, 52 How. Prac. [N. Y.] 97; Wilbur v. Dyer, 39 Me. 169; Douglass v. Viele, 3 Sandf. Ch. 439. ‘The mistake which will justify this relief may also be the mistake of the court. But, wherever it may be found that inadvertence or mistake is held to be ground for setting aside a judgment, it will be noticed that it is not a mistake of the law, or an inadvertent conclusion as to what the law is, but a mistake or inadvertence in doing something not intended to be done.’ 1 Black, Judgm. par. 335. Was the mistake here complained of such a one as a court of equity will relieve against? We think it was. It was clearly extrinsic and collateral to the questions examined and determined in [235]*235the action, and led the court to do what it evidently never intended to do; that is, to confirm to the plaintiffs a piece of land not decribed or referred to in the complaint or in the findings or interlocutory judgment.”
See, also, Adair v. Cummins, 48 Mich. 375, 12 N. W. 495.
We think it manifest, from the record in this case, ’that it was proper for the court to entertain jurisdiction and proceed to grant appropriate relief, and that the court below was mistaken in its conception that only a bill -of review would lie in this case. If the matter appeared on the face of the proceedings, where it could be discovered by reasonable diligence within the two-year period, a bill of review would be an appropriate remedy; but on the allegations of the bill in this suit, and the finding of the facts -by the chancellor, we think relief should be granted.
We do. not think the complainants are estopped by procuring the entry of the decree in the original suit, because the mistake was unknown at that time, and it was not the conscious doing of a thing, or the taking of a particular step, with knowledge of the appropriate facts upon which an estoppel could arise. Of course, where a party, with full knowledge of the facts, procure a judgment of the court, or suffers a judgment of the court to be entered, with knowledge of facts which he fails to disclose, the principle of estoppel would apply. Very many cases can be imagined where the entry of a judgment on mistake would reult in the greatest hardship and the grossets wrong if it should be held that the court had no jurisdiction to correct a judgment founded on a mutual mistake; and while, in this case, one of the heirs, had conveyed the land assigned, it is clear from the record that the parties buying the land bought with notice and with the expectation that the heir was only entitléd to convey two hundred and ten acres; and the chancellor’s finding is warranted by the evidence, as to [236]*236the knowledge of defendants Wesson and Stovall of these facts. '
The decree will be reversed, and the canse remanded for appropriate relief on the entire record.
Rversed and remanded.