Mr. Chief Justice Bailey
delivered the opinion of the court:
While the evidence of the negotiations which resulted in the purchase from the defendant by the complainant of the land subsequently conveyed is not very full or circumstantial, yet we think it shows with sufficient clearness that the contract which the parties intended to make, and which they in fact made, was for the purchase and sale of the fee. Indeed, upon this question there seems to be no substantial disagreement in the testimony of the witnesses.
The complainant testifies, in substance, that shortly prior to the execution of the deed, she, with her brother, visited the defendant’s farm to look at it with the view of purchasing it; that after she had been over it, the defendant offered it to her for $9,000; that nothing was said about the reservation by the defendant of any portion of the title or of any interest in the land, her understanding beingthat the defendant offered to convey to her the land in fee for the price named; that she did not accept the defendant’s offer at that interview, but subsequently, on the same day, having concluded to accept it, she sent her brother to the defendant to notify him of such acceptance.
Her testimony is substantially corroborated by that of her brother who went with her to see the farm, and he further testifies that $9,000 was the fair cash value of the land at that time, and in this he is not disputed by any other witness.
The defendant testifies that the complainant and her brother came to see the farm, and that he then gave them the price at which he would sell it; that his offer was not accepted at that interview, but that on the same day the complainant’s brother came back and said they would take the place; that when he sold the land to the complainant, he did so with the intention and expectation of conveying to her all the estate he had in it.
It is also clear that the deed which the defendant afterward executed in performance of the contract of sale thus made, was not a conveyance to the complainant of the fee. The conveyance was limited to the complainant “and her bodily heirs,” a limitation which, at common law, would have created an estate in fee tail. But by section 6, of chapter 23, of the Revised Statutes of 1845, which was in force at the time the conveyance was made, and which has since been re-enacted as section 6, of chapter 30, of the Devised Statutes of 1874, estates in tail are abolished, and it is provided that, in cases where, by the common law, any person might become seized in fee tail of any lands by virtue of any conveyance, such person, instead of becoming seized in fee tail, shall be deemed and adjudged to be and become seized thereof for his or her natural life only, and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would, on the death of the grantee, first pass, according to the course of the common law, by virtue of such conveyance.
The complainant, at the time of the execution of the deed to her, was a widow, and without children or descendants. No person therefore was then in being who, upon her death, could have taken as heirs of her body. It is true, she was then contemplating marriage, and shortly after the execution of the deed, was married to her present husband. The deed then, by force of the statute, conveyed to her only a life estate, with a contingent remainder in fee to her children, if any such should afterward be born, and in default of heirs of her body, the estate in remainder necessarily lapses, and at her death the land reverts to the defendant ih fee. In point of fact she has had no children, and as she claims, and as her evidence tends to show, she is now past the period of child-bearing, and the probable, if not the necessary result, if the deed is allowed to stand as it was executed, is, that the estate thereby conveyed is only for the life of the complainant, with reversion in fee to the defendant and his heirs. That such is not the estate for which the complainant contracted when she purchased the land, is to our minds too clear for controversy.
Upon these facts two questions arise, first, whether the limitation to the complainant “and her bodily heirs” was inserted in the deed by mistake, and, second, whether it is a mistake which a court of equity will correct.
The evidence as to the way in which this limitation happened to be inserted in the deed is, in substance, as follows: At the time the complainant purchased the land, she was living at her father’s house, and he seems to have taken charge, to some extent, of her business affairs. After she had been to see the defendant’s farm and had concluded to purchase it at the price offered by the defendant, and had requested her brother to communicate to the defendant her acceptance of his offer, her father seems to have taken it upon himself to procure the execution of the conveyance, and for that purpose he sent the complainant’s brother to the defendant to close the transaction up and get the deed. His instruction to the agent thus sent was to have the deed drawn with a limitation to the complainant and 6 ‘her bodily heirs,” and he, in pursuance of such instruction, had the deed drawn up and executed with such limitation, and in that form placed it on record. The complainant testifies that the instruction thus given by her father to her brother was wholly without authority from her and without her knowledge or consent, and that she was not aware of the insertion of such limitation in the deed until a considerable time after the deed was executed, and after her marriage to her present husband. Her father is dead, and his testimony is therefore not available. Her brother testifies to having received his instructions from his father, but he has no recollection of having conversed with the complainant about the matter, or of having received any instructions from her in relation to it. It follows that there was no direct evidence tending to dispute the testimony of the complainant on this branch of the case.
The defendant testifies, it is true, that after the deed was executed, he carried it to the house of the complainant’s father and there personally delivered it to the complainant, and that she and her father then examined it and said it was just as they wanted it. In this, however, he is directly contradicted by the complainant, who testifies that, at the time the defendant claims to have visited her father’s house, she was not there, she having left some days before, and having gone to another place some distance away, where she remained until after her marriage, and that she never saw the defendant, to her recollection, except at the time she went to see the farm prior to the purchase. She also swears that the first time she saw the deed was some time after her marriage, when it was brought to her by her husband. As to the difference in the recollection of these two witnesses it is only necessary to say, that the judge of the court below, who saw the witnesses and heard them testify, and therefore had better means of judging as to their respective credibility than we can have, reached the conclusion that the defendant was mistaken, and we can see no reason why we should not accept his conclusion as the true one. The view of the testimony taken by him probably was, that while it may be true that the defendant took the deed to the house of the complainant’s father and conversed with him about it, he is mistaken in his recollection that the complainant was present.
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Mr. Chief Justice Bailey
delivered the opinion of the court:
While the evidence of the negotiations which resulted in the purchase from the defendant by the complainant of the land subsequently conveyed is not very full or circumstantial, yet we think it shows with sufficient clearness that the contract which the parties intended to make, and which they in fact made, was for the purchase and sale of the fee. Indeed, upon this question there seems to be no substantial disagreement in the testimony of the witnesses.
The complainant testifies, in substance, that shortly prior to the execution of the deed, she, with her brother, visited the defendant’s farm to look at it with the view of purchasing it; that after she had been over it, the defendant offered it to her for $9,000; that nothing was said about the reservation by the defendant of any portion of the title or of any interest in the land, her understanding beingthat the defendant offered to convey to her the land in fee for the price named; that she did not accept the defendant’s offer at that interview, but subsequently, on the same day, having concluded to accept it, she sent her brother to the defendant to notify him of such acceptance.
Her testimony is substantially corroborated by that of her brother who went with her to see the farm, and he further testifies that $9,000 was the fair cash value of the land at that time, and in this he is not disputed by any other witness.
The defendant testifies that the complainant and her brother came to see the farm, and that he then gave them the price at which he would sell it; that his offer was not accepted at that interview, but that on the same day the complainant’s brother came back and said they would take the place; that when he sold the land to the complainant, he did so with the intention and expectation of conveying to her all the estate he had in it.
It is also clear that the deed which the defendant afterward executed in performance of the contract of sale thus made, was not a conveyance to the complainant of the fee. The conveyance was limited to the complainant “and her bodily heirs,” a limitation which, at common law, would have created an estate in fee tail. But by section 6, of chapter 23, of the Revised Statutes of 1845, which was in force at the time the conveyance was made, and which has since been re-enacted as section 6, of chapter 30, of the Devised Statutes of 1874, estates in tail are abolished, and it is provided that, in cases where, by the common law, any person might become seized in fee tail of any lands by virtue of any conveyance, such person, instead of becoming seized in fee tail, shall be deemed and adjudged to be and become seized thereof for his or her natural life only, and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would, on the death of the grantee, first pass, according to the course of the common law, by virtue of such conveyance.
The complainant, at the time of the execution of the deed to her, was a widow, and without children or descendants. No person therefore was then in being who, upon her death, could have taken as heirs of her body. It is true, she was then contemplating marriage, and shortly after the execution of the deed, was married to her present husband. The deed then, by force of the statute, conveyed to her only a life estate, with a contingent remainder in fee to her children, if any such should afterward be born, and in default of heirs of her body, the estate in remainder necessarily lapses, and at her death the land reverts to the defendant ih fee. In point of fact she has had no children, and as she claims, and as her evidence tends to show, she is now past the period of child-bearing, and the probable, if not the necessary result, if the deed is allowed to stand as it was executed, is, that the estate thereby conveyed is only for the life of the complainant, with reversion in fee to the defendant and his heirs. That such is not the estate for which the complainant contracted when she purchased the land, is to our minds too clear for controversy.
Upon these facts two questions arise, first, whether the limitation to the complainant “and her bodily heirs” was inserted in the deed by mistake, and, second, whether it is a mistake which a court of equity will correct.
The evidence as to the way in which this limitation happened to be inserted in the deed is, in substance, as follows: At the time the complainant purchased the land, she was living at her father’s house, and he seems to have taken charge, to some extent, of her business affairs. After she had been to see the defendant’s farm and had concluded to purchase it at the price offered by the defendant, and had requested her brother to communicate to the defendant her acceptance of his offer, her father seems to have taken it upon himself to procure the execution of the conveyance, and for that purpose he sent the complainant’s brother to the defendant to close the transaction up and get the deed. His instruction to the agent thus sent was to have the deed drawn with a limitation to the complainant and 6 ‘her bodily heirs,” and he, in pursuance of such instruction, had the deed drawn up and executed with such limitation, and in that form placed it on record. The complainant testifies that the instruction thus given by her father to her brother was wholly without authority from her and without her knowledge or consent, and that she was not aware of the insertion of such limitation in the deed until a considerable time after the deed was executed, and after her marriage to her present husband. Her father is dead, and his testimony is therefore not available. Her brother testifies to having received his instructions from his father, but he has no recollection of having conversed with the complainant about the matter, or of having received any instructions from her in relation to it. It follows that there was no direct evidence tending to dispute the testimony of the complainant on this branch of the case.
The defendant testifies, it is true, that after the deed was executed, he carried it to the house of the complainant’s father and there personally delivered it to the complainant, and that she and her father then examined it and said it was just as they wanted it. In this, however, he is directly contradicted by the complainant, who testifies that, at the time the defendant claims to have visited her father’s house, she was not there, she having left some days before, and having gone to another place some distance away, where she remained until after her marriage, and that she never saw the defendant, to her recollection, except at the time she went to see the farm prior to the purchase. She also swears that the first time she saw the deed was some time after her marriage, when it was brought to her by her husband. As to the difference in the recollection of these two witnesses it is only necessary to say, that the judge of the court below, who saw the witnesses and heard them testify, and therefore had better means of judging as to their respective credibility than we can have, reached the conclusion that the defendant was mistaken, and we can see no reason why we should not accept his conclusion as the true one. The view of the testimony taken by him probably was, that while it may be true that the defendant took the deed to the house of the complainant’s father and conversed with him about it, he is mistaken in his recollection that the complainant was present.
In view of all the evidence, then, we are of the opinion that the court below was justified in finding, as a fact, that neither the complainant’s father nor her brother had any authority from her to procure the insertion in the deed conveying the land to her, of a limitation of the estate conveyed, to her and the heirs of her body, and that such limitation was inserted in the deed wholly without her knowledge, authority or consent. Neither her father nor her brother is shown to have been in any proper sense her general agent. The contract of purchase was made by herself in person, except merely that she employed her brother to communicate to the defendant her acceptance of the offer which he had previously made to her. What her father and brother subsequently did by way of consummating the purchase and obtaining the conveyance, seems to have been done, not by virtue of any specific employment by her, but.by way of rendering such voluntary assistance as a father and brother, having a proper interest in her welfare, would naturally render under such circumstances. Their authority to act as her agents, so far as the evidence shows, was merely voluntary on their part and permissive on hers, and extended merely to closing up the purchase as she had made it, and not the imposition of new terms, or the insertion of limitations to which she had not assented and of which she knew nothing.
The defendant’s testimony throws some light upon the motives which actuated thecomplainant’s father in instructing her brother, when he sent him to look after the execution of the deed, to have that instrument so drawn as to limit the title conveyed to the complainant and the heirs of her body. The defendant testifies that the brother gave as a reason why they wished such limitation inserted, that the complainant was about to be married, and they wanted the deed so drawn that no person—referring probably to her intended husband—could get hold of the land. If then the limitation was inserted for such purpose, without the complainant’s knowledge or consent, it was in the nature of a fraud upon her, of which the defendant had notice, if he did not actively participate in it. She bought the land for herself and paid for it with her own money, and any attempt by her father and brother, for purposes of their own, .to place limitations upon her title, without her knowledge or authority, were unauthorized acts, for which she should not be held responsible.
Keeping out of view for the present any question of laches on the part of the complainant, we think her right to a reformation of the deed is undoubted. It is not an adequate execution of her contract of purchase, that contract being for the fee, while the deed leaves the reversion, after her life estate, in the grantor. The defendant’s contention, however, is, that even though the deed does not express the intention of the parties, the mistake is one of law, which a court of equity can not correct.
If the deed had been executed as an original transaction, and not by way of performance or of putting into form an antecedent oral contract between the parties, then if it had appeared that the complainant’s brother, in procuring its execution, had authority on her behalf to procure or consent to the insertion of the limitation to her and the heirs of her body, in such way as to give the act the same legal effect as though performed by herself, there would probably be much force in the defendant’s contention. If, under the circumstances supposed, she had personally requested the insertion of this limitation, or had accepted the deed with full knowledge of its terms, she would havebeen bound by the instrument as executed, however much she may have been mistaken as to the legal effect of the language thus employed. An illustration of this rule may be found in the case of Fowler v. Black, 136 Ill. 363. The same effect would doubtless be given to the act of her agent, if his authority had extended to the adoption and acceptance on her behalf of the same clause. But, as we have seen, the evidence fails to show the existence of such authority.
The general rule is, that a mistake of law, pure and simple, is not adequate ground of relief. ' Where a party, with knowledge of all the material facts, and without any other special circumstances giving rise to an equity in his behalf, enters into a transaction affecting his interests, rights and liabilities, under an ignorance or error with respect to the rules of law controlling the case, courts will not in general relieve him from the consequences of his mistake. 2 Pomeroy’s Eq. Juris., sec. 842. Accordingly, if an agreement or written instrument, or other transaction expresses the thought and intention which the parties had at the time and in the act concluding it, no relief, affirmative or defensive, will be granted with respect to it, upon the assumption that their thought and intention would have been different, if they had not been mistaken as to the legal meaning and effect of the terms and provisions by which such intention is embodied and expressed, even though it should be incontestably proved that their intention would have been different if they, had been correctly informed as to the law. Id., sec. 843.
But firmly settled as are the foregoing general rules, it is equally well settled that there are particular instances in which equity will grant defensive and affirmative relief from mistakes of law pure and simple, as well as from those accompanied by other equitable incidents. Among the particular instances where such relief will be granted, the learned author to whom reference is above made, lays down the following: “If an agreement is what it was intended to be, equity will not interfere with it, because the parties have mistaken its legal import and effect. If, on the other hand, after making an agreement, in process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact. In this instance there is no mistake as to the legal import of the contract as actually made; but the mistake of law prevents the real contract from being embodied in the written instrument. In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing. Among the ordinary examples of such errors are those as to the legal effect of a description of the subject matter, and as to the import of technical words and phrases; but the rule is not confined to those instances.” Id., sec. 845. To similiar effect, see, Oliver v. Mutual Commercial Ins. Co., 2 Curtis, 277; Champlin v. Layton, 6 Paige, 189; Champlin v. Layton, 18 Wend., 407; also authorities cited by Mr. Pomeroy in note to sec. 845.
The present case clearly falls within the exception to the general rule thus pointed out and discussed by Mr. Pomeroy. The defendant’s offer was, to sell to the complainant the land, an offer which, made as it was without limitation or qualification, and for a consideration equal to the fair cash value of the land, must be understood as a proposition to sell the fee, and the offer was accepted by the complainant precisely as it was made. A contract was thereby consummated for the sale and conveyance by the defendant to the complainant, for the consideration named, of an absolute fee simple title to the land. Both parties understood that the conveyance was to be in fee, and both intended that the contract should be so executed. But by the unauthorized act of the complainant’s agent or by the mistake of the scrivener, it matters little which, technical words were inserted, the legal effect of which was to limit the estate conveyed to the complainant to a tenancy for her life only. Thus, through a mistake of law, the conveyance failed to express the contract into which the parties had actually entered. It follows that the case is one in respect to which a court of equity, upon principles above set forth, will grant relief.
Is the complainant barred of relief by her laches ? The evidence tends to show that the first time she saw the deed or was in any way made aware of the limitation upon her estate therein contained, was sometime in the year 1869, when it was brought home from the recorder’s office by her husband, and that her attention was then called for the first time to its terms. Her husband, though not a lawyer, expressed some doubts as to its sufficiency to convey the estate which the complainant had purchased and paid for, and he shortly afterward called upon the defendant and expressed to him his doubts, and requested him to execute to the complainant a quit-claim deed, which the defendant promised to do. A quit-claim deed being drawn up and presented to the defendant to be executed, he declined to execute it then, but promised to attend to the matter when he went to town. On going to town, he consulted with an attorney, and after obtaining his advice, he declined to execute the quit-claim deed, assigning as an excuse, that he had been advised that if the complainant should have children, they might have recourse upon him, in case he made any further conveyance to the complainant. On one or more occasions, he disclaimed having any beneficial interest in the land himself. Under these circumstances, the complainant’s husband applied in her behalf to a reputable attorney for advice as to the character of the complainant’s title, and received from him an opinion in writing, that the legal effect of the deed was to convey to her an absolute and complete title in fee simple. The complainant rested satisfied and content with this advice, until sometime in the year 1889; she all of the time remaining in possession of the land, either by herself or by her tenants. About the date last mentioned, she consulted with one of her present counsel in relation to the matter, and then for the first time was advised that her estate was only for life, and she thereupon brought the present suit. We think these circumstances furnish a sufficient explanation and excuse for her delay in applying to a court of equity for a reformation of the deed, and that she is not guilty of such laches as should bar her right to relief.
Other objections to the decree are alleged which we have duly considered, but which we do not regard as tenable, or as calling for discussion. We are of the opinion that the decree is warranted by the evidence, and it will therefore be affirmed.
Decree affirmed.