Hurd v. Hall

12 Wis. 112

• Court: Wisconsin Supreme Court
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court,

Disosr, O. J.

That both, the parties to this suit acted under a radical mistake, either in matters of law or in matters of fact, in the transaction disclosed bj the record, can hardly admit of denial or doubt. That such was the case with the plaintiff seems still less questionable. It is impossible to suppose that he would have purchased the certificates in question at the price agreed upon, if he had known that they were worth less than so many pieces of blank paper. The fact that they were so, proves almost conclusively that he was in some way deluded or misled. As it is only against mistakes of fact that courts will grant relief, it becomes necessary, in the first instance, to ascertain the nature of that here complained of, in order to determine whether the plaintiff is entitled to maintain his action on that ground. If it was a mistake of law, there being no averment or proof that any fraud or imposition was practiced upon him, he must abide the consequences of his ignorance, and cannot, on that account, be permitted to avoid his contract. But if it was a mistake of fact, the action may be maintained, unless it falls within some of the exceptions to the general rule, that “ignorance of a material fact may excuse a party from the legal consequence of his conduct.”

A mistake of law happens, when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference1 arising from an imperfect or incorrect exercise of the judgment, upon facts as they really are; and like a correct opinion, which is law, necessarily presupposes that the person forming it, is in full possession of them. The facts precede the law, and the true and false opinion alike imply an acquaintance with them, Neither can exist without it. The one is the result of a correct application to them of legal principles, which every man is presumed to know, and is called law; the other the result of a faulty application, and. is called a mistake of the law. I do not find, in any of the reports or commentaries, a concise and accurate definition of such mistake; but, after an examination of the principal adjudged cases, I believe that the foregoing is substantially correct. I believe, also, that no case will be found, where courts have refused relief on the ground of a mistake of law, in which it did not clearly appear that the party to whom such relief was denied, was fully apprised of all the facts ■ from which such mistaken conclusion was drawn; and that those instances of confused mistake of law and fact, where relief has sometimes been given, and sometimes denied, and which may at first seem to be exceptions to this rule, will, when closely scrutinized, be found not to be so, but to fall within the rule and its exceptions, that ignorantia facti ex-cusat.

An error of fact, ignorantia facti, is ordinarily said to take place, either when some fact which really exists, is unknown, oí¡some fact is supposed to exist, which really does not exist. The most frequent, familiar and striking examples of such error, are found in those cases in which the books abound, and to which we need not here particularly refer, where the parties are deceived or .mistaken as to the existence or non-existence of certain facts, materially affecting the transaction, and which are present in their minds at the time of entering into the agreement, and directly influence their conduct in so doing. But as is implied from the maxim, igno-rantia facti excusat, and from the definition which we have given, of a mistake of law, a mistake of fact has, in legal parlance, a much more enlarged signification, and extends to and includes the case of a party who, through mere ignorance of the existence or non-existence of a material fact, is induced to do an act, or enter into a contract injurious to himself, where, if he had been informed of the existence or nonexistence of such fact, he would not have performed such act or made such contract. Ignorance of the existence or non-existence of a material fact, precludes the idea that the party, at the time of the transaction, should have been influenced by it, for it is impossible tliat tbe mind should be . moved by that of which it knows nothing. This ignorance of facts must be excusable, that is, it must not arise Rom the intentional neglect of the party to investigate them. The rule which formerly prevailed, that if a party might, by the exercise of reasonable diligence, have ascertained the facts, he would not, on the ground of ignorance or mistake, be relieved from his contract, has of late been very much relaxed. The later cases establish the doctrine, that whenever there is a clear bona fide mistake, ignorance or forgetfulness of facts, the contract may, on that account, be avoided. The following cases illustrate the doctrine that mere ignorance or forgetfulness of facts, without intentional neglect to examine them, excuses, and, in some particulars, seem to bear strongly on the ¡Dresent case. In Milnes vs. Duncan, 6 B. & C., 671, (13 E. C. L., 293,) an action for money paid in ignorance of fact, was sustained under the following circumstances : A bill of exchange, drawn in Ireland upon the stamp required by law there, but which was less than the stamp required for such a bill drawn in England, was negotiated and sold in England. There was .nothing on the face of the bill to show that it was drawn in Ireland. The holder in England neglected to present it for payment, and held it for a month after it was due. The acceptor having become bankrupt, the holder applied to the endorser, from whom he had received it, for payment. The latter refused to pay it, alleging that the holder had made it his own by his laches. The holder then threatened suit, alleging that the bill was void for being drawn on an improper stamp. The indorser inspected the bill, and finding that the stamp was not that required for a bill of the same amount drawn in England, and ignorant of the fact that it had been drawn in Ireland, paid the amount to the holder.

In the case of Kelly vs. Solari, 9 M. & W., 54, it was held, that money paid under a bona fide forgetfulness of facts, might be recovered back in an action for money had and received. The late husband of the defendant had effected a policy on his life in the Argus Assurance Company. He died in October, 1840, leaving the defendant his executrix, not Raving (by mistake) paid the quarterly premium on the policy, which became due on the 3d of September preceding.-. In November tire actuary of tire office informed two of the directors that the policy had lapsed by reason of the nonpayment of the premium, and one of them, thereupon, wrote upon the policy, in pencil, the word “ lapsed.” In February, 1841, the defendant, as executrix, applied at the office for, and received from the same and a third director, payment of the sum secured on the policy. The two directors stated in evidence, that they had entirely forgotten, at the time of payment, that the policy had lapsed. Lord AbiítgeR, C. B., says: “ I think the knowledge of facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.” Pabke, Bl, says: “If indeed the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact.” To the same effect is the case of Bell vs. Gardiner, 4 M. & G. 11, (43 E. C. L., 16,) where it was held to be a good defense to a promissory note, that it was given by the maker in payment of a bill of exchange which he had endorsed for the accommodation of the drawer, and which bill, after it was so endorsed, had, with the consent of the drawer, been altered in a material point, of which alteration the maker of the note, though he had ample means of Mowing it, was ignorant at the time he gave it. The court say: “ that it must now be taken, that it is no answer in an action for money had and received, brought to recover back money paid by mistake, to say that the party had the means of knowing the facts, if he had not the knowledge in reality:” Such means of knowledge are strong circumstances to go to the jury, to prove that the party had the knowledge, but do not preclude a recovery.

These cases are understood as expressing the doctrines of the English courts, except in cases where the- party is charge- . able by law with constructive notice of the facts, or where he willfully assumes them, or waives an investigation after his attention has been invited to them; or where motives of public policy require that he should bear the consequences of his mistake, such as a mistake by bankers in the payment of forged bank notes or drafts.

The case of Champlin and others vs. Laytin, and Laytin vs. Champlin and others, in the coru’t of chancery of New York, 6 Paige, 189, and afterwards in the court of errors, 18 Wend., 407, cited by the counsel for the defendant, so strikingly resembles that which we are now considering, in many of its features, its doctrines so clearly accord with those of the English courts, and sustain the definitions we have given of a mistake of law, and a mistake of fact, that we feel warranted in stating the facts, and the conclusions of Chancellor Walwoeth and Judge Bronsoh, somewhat minutely. The facts, as they appear from the opinions of Judge Brohsoít and Vice-Chancellor McOohh, were these. Eifth street, in the city of New York, running from Broadway to Mercer street, through lands owned by Elizabeth Dupeyster, deceased, of whose estate Champlin and others were executors and trustees, was laid down on a map, made for the corporation of the city in the year 1817. In 1821, the executors caused a map of the lands of the testatrix to be made, on which Eifth street was laid down to correspond with the city map. They afterwards made sales in pursuance of this survey, and, in January, 1822, they sold and conveyed a lot to Samuel Whittemore, extending from Broadway to Mercer street, and which, by the terms of the deed, was bounded on one side for the whole distance by Eifth street. According to the decision of the supreme court of that state, made in 1825, Mercer Street Case, 4 Cowen, 542, such sale and conveyance did not amount to an implied grant of a right of way to the purchaser over the proposed street, and the executors, when the street should be opened, would be entitled to be paid the full value of the land, without regard to the supposed easement. The executors, acting on their belief that ¿¡heir sale to Whittemore had not affected their interest in the land required for the proposed street, surveyed the same into lots, and in January, 1828, sold and conveyed to Laytin, the two lots which were the^ subject of controversy in that suit. In the case of Lewis Street, 2 Wend., 472, decided in 1829, the case of Mercer Street was reconsidered and overruled; and the principle of the last decision was approved in several subsequent decisions. After the decision in* the case of Lewis Street, the corporation of the city ordered Fifth street to be opened, and Laytin was only allowed a nominal consideration, five dollars, for his two lots, on the ground that the previous acts of the executors, in selling and bounding lots on the streets, amounted to a grant of a perpetual easement, or right of way over the land. Laytin purchased the lots at the price of $4,800, one-half of which he paid down, and gave his bonds and mortgages to secure the residue. Before the conveyance to him. was executed, he was informed that his two lots lay in the site of the proposed street. Both he and the executors entertained the belief, that he would acquire a perfect title to the lots, and should the street be opened, he would be entitled to receive full compensation for the land, without prejudice from any previous acts of the executors. In 1836 the executors filed their bill for a foreclosure and sale under the mortages, and for a decree over against Laytin for any deficiency. Laytin filed his cross bill to have the mortgages given up and cancelled, and for a return of the money paid by him on account of the purchase, on the ground of mistake. This led to the discussion of the question whether it was a mistake' of law or a mistake of fact, and if it was a mistake of law, whether Laytin was entitled to relief on that ground. The Vice-Chancellor held that it was a mistake of law, and that he was entitled to relief on account of it. The Chancellor and Judge Bronson, and with him the court of errors, except Paige, Senator, repudiated the doctrine that a mistake of law could be relieved against, but held that it was a mistake of fact, and that on that account he was. entitled to have the mortgages given up and cancel-led, and the purchase money refunded. It will be recollected, that by the terms of the conveyance to Whittemore, his lots were bounded on. Eiftb street. Tbe executors, in tbeir answer to tbe cross bill, admitted that, in tbe full belief that they bad a perfect title to tbe lots, they so represented to Lay-tin, at tbe time of tbe sale; but they relied on showing that be bad knowledge of the contents of tbe Whittemore deed, through Mr. Fitch, who was bis counsel at tbe time of bis purchase, and who made an abstract of tbe title, in which that deed was conspicuously noted. On bis examination, be said, that in tbe registered certificate annexed.to bis notes of searches, that deed was mentioned, and be gave a copy of tbe short note made by tbe register, in which tbe lot was described as “No. 7, Dupeyster’s map.” He added, that be did not remember examining tbe deed; be thought it very doubtful whether be did, for be saw that number on tbe map, and it was not tbe property be was searching for. He further said, that be bad no recollection of having examined tbe record of any of tbe deeds referred to by tbe register. He thought be did not. Tbe Chancellor and Judge both observed that it was not a case for tbe application of tbe doctrine of constructive notice, for tbe reason that tbe Whit-temore deed did not constitute a link in tbe chain of title which Laytin was investigating, and through which be claimed; and because tbe testimony of Fitch did not establish that he had knowledge of the fact, that, by tbe terms of tbe conveyance, Whittemore’s lot was bounded by the street, they held that it was a mistake of fact. Though much reliance is put upon the fact, that the executors, in good faith, represented their title as good, still a much stronger case, showing that tbe mere ignorance of a fact vdll excuse, under circumstances, where tbe exercise of very slight diligence in making inquiry, would have placed tbe party in possession of it, where tbe means of knowledge were at hand, and where bis attention was apparently called to its investigation, cannot well be put.

The material fact upon which the rights of the parties turned, was the bounding of the Whittemore lot by the street in the deed to him, and because it did not affirmatively appear that Laytin’s attorney had notice of it, be was relieved. Tbe attorney and Laytin himself both knew of the map of 1817, and of the sale and conveyance to Wbittemore, and tbat it was made by that map, and where bis deed was recorded ; but it did not appear tbat they bad ever read or knew its contents. The court seem to have gone upon the doctrine, tbat where it is evident that a party was laboring under an injurious mistake, either of law or of fact, and the testimony does not clearly show tbat be knew the facts, or leaves it doubtful whether be did or did not, that it will be taken to be a mistake of fact; and that under such circumstances the burden of showing that be knew the facts, and that therefore it was a mistake of law, will be thrown on bis antagonist, who seeks to take an unfair and unconscionable advantage of him. Because the executors did not show that Laytin knew the facts, they were decreed to surrender the mortgages and refund the purchase money. A mistake of law cannot be presumed. The presumption is the other way; and from' its nature, the court must be able to say that the facts were known, before it can say that the mistake has been committed. For otherwise it would at once be indulging in two contradictory and conflicting presumptions ; tbat the party both knew aud did not know the law, at the same time; which would be absurd. Nor will the court, for the sake of burdening a party with a penalty, and of giving his adversary an undue advantage, first presume that he knew the facts, and upon such presumption, inflict upon him the dangerous responsibility of knowing the law. It must first be shown that he knew the facts, with which an acquaintance cannot be presumed, and then he is responsible for a proper application of the law. 1 Story’s Eq. Jut., § 140.

An application of the foregoing principles to the facts of the present case, renders its determination a very plain matter. The material fact upon which the validity of the certificates for lots 116, 118, 120, 121 and 122 depends, is whether the commissioners of the school and university lands did, in the years 1853 and 1854, reoffer the lots for sale at public auction, by reason of the non-payment of the interest and damages due for those years upon the certificates of sale of them made in 1850. If they did, then the certificates were valid, and the title of the holders, subject to the payment of the purchase money and interest, was good; otherwise they were invalid, and conveyed no interest in the lots; the rights of the holders of the certificates of 1850 were unforfeited, and the lands were not subject to private entry. There is no dispute that the lands were not so xeoffered, which, under the decision of this court, in Damman vs. The Commissioners of the School and University Lands, 4 Wis., 114, renders them void. Both parties knew of the sales of 1850, and that the certificates then issued were outstanding. But did they know whether the lots had been re-offered for sale at public auction, so as to work a forfeiture of those certificates, and subject the lots to private entry? Hall testifies that he did know it, and therefore, to suppose him to be an innocent party in the transaction, we must believe that he was mistaken in the law, in supposing that no re-offer was necessary in order to enable him to make the entry. Bid Hurd know whether such reoffer had been made or not ? He testifies positively that he did not; that he did not know that it was necessary to do so. We believe in the truth of his statement, and are fully satisfied that it was so. He was wholly ignorant upon the matter. It is true that Hall attempts to testify that Hurd knew that the lots had not been reoffered. But he does it in a manner which leads us almost to doubt whether he knew it himself. He says he knew it from the advertisement of the commissioners; that he exhibited the advertisement to Hurd, and therefore he infers that Hurd knew it. A copy of the advertisement is contained in the record, and from it we must say that we could draw no such inference. It commences by reciting that “ the following described lands in Rock county, having been forfeited by reason of the non-payment of interest, are subject to private entry,” &c. "What was there in this from which an inference was to be drawn, that the lands had not been reoffered ? On the other hand, was not the inference the other way ? It recited that the lands had hem forfeited, and the only legal and constitutional mode of forfeiture being that of reoffering them for sale at public auction, the only legitimate inference was that they had. been so reoffered. It does not appear whether or not the parties had actual knowledge of the act of 1853, referred to by the court in the Damman case, and which was there held to be unconstitutional. If they had, it could make' no difference. It could furnish no ground for presuming a knowledge of the facts, that the party, if he had known them, might, or would in all probability, have been misled as to the law, or have committed an error, the consequences of which wirald have been precisely the same as those which arose from his ignorance of the facts. We are of opinion that the mistake complained of was an injurious mistake of fact, and not of law; that it was excusable in its character; and that it is against conscience for the defendant to attempt to enforce the contract; and therefore, that the plaintiff is entitled to maintain his action.

The argument of the counsel for the defendant, founded upon the character of the instruments transferred, deserves notice: They liken the transaction to a sale of real estate, and say that where there is no fraud,-and no covenants are taken to secure the title, and it wholly fails, the purchaser is without a remedy, either at law or in equity. It is said that if the plaintiff can recover in this, action, then a quit-claim deed is as good in every case of the sale of an interest in lands as a warranty deed; for in every case the vendee holding title by quit-claim, 'can; in case of a failure of title, recover back the consideration paid, and he could do no more where he has taken a warranty deed; that in every case of a pinchase of land by quit-claim, when the vendee pays a valuable consideration, he does so on the supposition and belief that he receives an interest in the land, which is an .equivalent, &c. If the assignments of the certificates in question could be considered as conveyances of real estate, according to any of the forms known to the law or in general use, this argument would undoubtedly be correct. But they are not. The certificates, provided they had been of any validity, were chattels real, and the assignments were the means or evidences of their transfer. They do .not purport, nor were they intended, to transfer the title to real estate. The parties were not dealing with reference to, or on the supposition that the title was in either of them. They both knew that it was in the state. They only attempted to trans- . fer the certificates, the value of which was governed hy the value of the realty which they concerned, and to which they were supposed to be annexed. The certificates being chattels real, and “falling below the character and dignity of a freehold,” were only personal estate, and their assignment and transfer are governed by precisely the same rules as the assignment and transfer of other personal property. 2 Kent’s Comm., 342. Such chattels, says Mr. Stephens, 2 Steph. Comm., 65, “when considered in reference to the distinction between real and personal estate, are held to fall under the latter denomination, their incidents being in general the same with those of property in movables.” It will, we suppose, hardly be contended that in the case of the sale of a merely personal chattel, or chose in action, the purchaser would be precluded from taking advantage of a serious, detrimental mistake of fact, because he did not fortify himself with covenants. See cases of Moredock vs. Rawlings, 3 Monroe, 73; Bedall vs. Stith, id., 290, and Tribble vs. Davis, 3 J. J. Marshall, 633, where assignments of bonds and contracts for the conveyance of real estate are placed, by the court of appeals of Kentucky, on the same footing as assignments of other assignable instruments ; and where it is said that upon such assignments there is, without express words, an implied undertaking on the part of the assignors, that the makers of the bonds or contracts have title, and will convey and are responsible for the damages in case of failure to do so; and if the assignees, with due diligence, are unsuccessful in obtaining either title or damages, they may sue for and recover back the purchase money, with interest. See, also, Kauffelt vs. Leber, 9 Watts & Sargeant, 93. In the case of Purvis vs. Rayer, 9 Price, 488, and Souter vs. Drake, 2 Barn. & Adolph., 992, (27 E. C. L., 250), it was held that unless there be some stipulation to the contrary, there is in every contract for the sale of a lease, an implied undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself, which implied undertaking is as available at law as in equity. It is to be observed, however, that these last were cases of executory contracts. These authorities suifi-ciently prove that assignments of contracts for tbe sale of real estate or an interest in it, and executed conveyances of, it, are not subject to tbe same rules of construction.

Tbe rule that there are no implied covenants on a deed of lands, and that when there are no express covenants, and no fraud, tbe vendee is without remedy, unless there be some mistake against which the law will relieve, grows out of the character of the instrument, and is not founded upon the nature of the property transferred. The purchaser of land who intends to have recourse in case of eviction against the former proprietor, takes care to have inserted in the instrument of conveyance the necessary covenants for that purpose, thereby ascertaining the precise extent of the liability. If the sale is made upon the understanding that the title is to be at the risk of the grantee, who is to have no remedy in case of defect, express covenants are omitted, and deeds of quit-claim are used. Frost vs. Raymond, 2 Caines’ R., 188. The price often depends as much upon the nature of the title and form of the conveyance, as the intrinsic value of the land itself, and where there are no covenants, it is presumed that the title is at the risk of the grantee, and that there was a corresponding deduction in price. This is the interpretation which the law puts upon the contract, and unless there is some clearly relievable mistake of fact, the failure of the vendee to protect himself by proper covenants, is regarded as so grossly negligent, that courts will afford no redress, even though the title wholly fails.

This rule, however, applies only to executed contracts for the sale of real estate, and has no reference to those which are executory, upon which relief, on the ground of mistake or failure of consideration, is granted as freely as on contracts concerning personalty.

There are other grounds upon which I am of opinion that the plaintiff is entitled to maintain this action. In every sale of a chattel there is an implied warranty that it exists, and that the vendor has title to it. So, in the assignment of an instrument, even not negotiable, for a full and fair price, I think the assignor impliedly warrants that it is valid, and that the obligor is liable upon it, unless it clearly appear that the parties intended to the contrary. This doctrine has long settled on common law principles, in many of the states 0f this Union, by courts of the highest respectability and learning, and I perceive no reason to doubt its soundness or justice. In Virginia, Mackie vs. Davis, 2 Wash., 219; Norton vs. Rose, id., 233; Caton vs. Lenox, 6 Rand., 31; Coiner vs. Hansbarger, 4 Leigh, 452; Goodall vs. Stuart, 2 Hen. & Mun., 105; Mandeville vs. Riddle, 1 Cranch, 290; Yeaton vs. Bank of Alexandria, 5 id., 49, and Crawford vs. McDonald, 2 Hen. & Mun., 189. In Indiana, Howell vs. Wilson, 2 Black., 418. In Kentucky, cases above referred to, and Maupin vs. Compton, 3 Bibb, 215; 6 Litt., 200. In Mississippi, Lee vs. Hopkins, 12 Smedes & Marsh., 299, In New York, Furniss vs. Ferguson, 15 N. Y., 437.

I also think that the action could be maintained on the ground of a failure of consideration, by reason of the plaintiff's not having obtained what he bargained for; that the instruments did not answer the description of those which the defendant professed to sell, or the plaintiff to buy. The instruments assigned, though resembling school land certificates, were not such certificates at all. They were mere worthless pieces of paper drawn up in the form of such certificates. The fact that they were signed by the commissioners in their official capacity, can make no difference, so long as they were wholly unauthorized to do so. Their acts in signing and issuing them, under the circumstances, were wholly void, and the certificates, in that respect, were no better than if they had been signed by some other persons and were sheer forgeries, except so far as recovering back the money already paid was concerned. In this respect the case seems to me to fall directly within the principle of the cases of Young vs. Cole, 3 Bing., N. C., 724 (32 E. C. L., 302), and Gompertz vs. Bartlett, 24 Eng. Law and Eq., 156. The length of this opinion will not allow a recital of the facts of those cases here. It is sufficient to' say, that they were both actions between two equally innocent persons, the former as holders of four Grua-tamala government bonds, the latter of a bill of exchange. All the instruments appeared upon their face to be good, but were secretly defective; the bonds being such as had theretofore been bought and sold in the London Stock change, were defective in not having been produced by the holders, and stamped by an agent of the government, pursuant to an order of the government, made after their issue, but of which the parties were ignorant; the bill, in having been drawn in England instead of Sierra Leone, as it purported, and as the parties supposed it to have been. It was held that the plaintiffs, who were assignees, could, after discovery of the defect which rendered the instruments worthless, recover of the defendants, who were assignors, the money paid to them upon an assignment made when both were equally ignorant. Tindall, C. J., in speaking of the bonds in the former case, says: “It seems, therefore, that the consideration on which the plaintiff paid his money, has failed as completely as if the defendant had contracted to sell foreign gold coin, and had handed over counters instead. It is not a question of warranty; .but whether the defendant has not delivered something which, though resembling the article contracted to be sold, is of no value.” I think the cas@s fully sustain the position.

On these two last propositions, however, I have not consulted my brethren, and they are, therefore, given as my own conclusions, and not those of the court.

Although we agree with the circuit judge on the main question involved in the case, still the judgment must be reversed on another point. We think he erred in not allowing the defendant to show that the plaintiff had bought in the original certificates for the lots to which the title failed, at a less sum than the price agreed to be paid by him to the defendant for his interest. In analogy to the rule of damages which obtains in actions for a breach of the covenant of seizin (2 Parsons on Contracts, 498, and cases •„ there cited), and in actions upon executory contracts for the sale of real estate (Thredgill vs. Pintard, 12 How., U. S., 24, and authorities there cited by counsel for appellee), where the vendee in possession, has bought in an outstanding or paramount title, we are of opinion that if the plaintiff here has bought in the outstanding certificates, so- as to procure a good title, for a less sum than the price agreed to be paid to the defendant, he is entitled to have his notes cancelled, and his money refunded, only to the extent of what he has expended in procuring such good title. Therefore, the plaintiff, after deducting one-half of the value of the 60 acres to which he acquired a good title, as compared with the value of the residue, according to the price agreed to be paid for the whole, is entitled to have his notes cancelled, and money refunded; unless he has perfected his title by buying in the outstanding certificates, or otherwise, at a rate less than that which he agreed to pay the defendant, in which case he is entitled to have one-half of the sum so paid to perfect his title, deducted from the price which the defendant was to receive, and he is to account to the defendant for the residue or excess.

The judgment of the circuit court is, therefore, reversed, and the cause remanded for further proceedings in accordance with this opinion.