which have been copied in Montana, 18 North Dakota, 19 Oklahoma, 20 and South Dakota.21 In the Georgia Code, 22 it is provided that relief may be given in equity for mistake of law, and recovery of money paid is allowed on the same ground. 23 On the other hand, it may be noted that the courts of Illinois 24 and Pennsylvania 25 go to an extreme in denying the generally received exceptions to the rule that a mistake purely of law justifies no relief. 26 The tendency in courts of equity to depart from a general recognition of a distinction between mistakes of facts and law is stronger than the similar tendency in courts of law. 27 In England at least it has been broadly said that a court of equity may relieve from mistake of law "if there is any equitable ground that makes it, under the particular facts of the case, inequitable that the party who received the money should retain it;" 28 and though few American courts might express themselves so broadly most would agree with the statement of the Supreme Court of Missouri.29 "It is a legal commonplace that ignorance of the law excuses no man, but this is a hard saying much murmured against, and the rule is relaxed in equity." 30 18 Civil Code, §§ 4973, 4982, 4984. 19 Rev. Code (1913), §§ 5844, 5853, 5855; Silander v. Gronna, 15 N. Dak. 552, 108 N. W. 544, 125 Am. St. Rep. 616; Hellebust v. Bonde, (N. Dak. 1919), 172 N. W. 812. 20 Rev. Laws, 1910, §§ 898, 907, 909; Hamilton v. Havercamp, 37 Okl. 41, 130 Pac. 259; Northwest Thresher Co. v. McNinch, 42 Okl. 155, 140 Pac. 1170. But see Campbell v. Newman, 51 Okl. 121, 151 Pac. 602. 21 Civ. Code, §§ 1196, 1205, 1207. 22 Secs. 4576, 4577. See Culbreath v. Culbreath, 7 Ga. 64, 50 Am. Dec. 375; Jones v. Munroe, 32 Ga. 181; Gefken v. Graef, 77 Ga. 340; Hansford v. Freeman, 99 Ga. 376, 27 S. E. 706; Strange v. Franklin, 126 Ga. 715, 55 S. E. 943. 23 See cases in the preceding note. 24 Atherton v. Roche, 192 Ill. 252, 61 N. E. 357, 55 L. R. A. 591; Tilton v. Fairmount Lodge, 244 Ill. 617, 91 N. E. 644; Baker v. Pierce, 197 Ill. App. 158. Cf. Moore v. Shook, 276 Ill. 47, 114 N. E. 592. 25 Fink v. Farmers' Bank, 178 Pa. 154, 167, 35 Atl. 636, 56 Am. St. Rep. 746; Clark v. Lehigh, etc., Coal Co., 250 Pa. 304, 95 Atl. 462; Shields v. Hitchman, 251 Pa. 455, 96 Atl. 1039. 26 See also Euler v. Schroeder, 112 Md. 155, 76 Atl. 164; Godwin v. Da Conturbia, 115 Md. 488, 80 Atl. 1016. 27 See Stanley Bros., Ltd., v. Corporation of Nuneaton, 108 L. T. (N. S.) 986, 992. 28 Rogers v. Ingham, 3 Ch. Div. 351. 357. See also In re Hulkes, 33 Ch. D. 552; Allcard v. Walker, [1896] 2 Ch, 369, 381. 29 Williamson v. Brown, 195 Mo. 313, 330, 93 S. W. 791. 30 In Reggio v. Warren, 207 Mass. 525, 534, 93 N. E. 805, 32 L. R. A. (N. S.) 340, the court indicated its hostility to the doctrine, saying: "Sometimes as § 1583. Mistake of law in the Civil law. The classical Roman law denied relief on account of mistake of law except in the case of minors and women.31 But in most the ground of decision and sometimes merely in discussion or argument, it has been said that there is no established rule forbidding the giving of relief to one injured by reason of a mistake of law, but that whenever it is clearly shown that parties in their dealings with each other have acted under a common mistake of law and the party injured thereby can be relieved without doing injustice to others, equity will afford him redress. Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052; Freichnecht v. Meyer, 39 N. J. Eq. 551; Ryder v. Ryder, 19 R. I. 188, 32 Atl. 919; Hausbrandt v. Hofler, 117 Iowa, 103, 90 N. W. 494, 94 Am. St. Rep. 289, quoting and following Stafford v. Fetters, 55 Iowa, 484, 8 N. W. 322, and Ring v. Ashworth, 3 Iowa, 452; Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52. To the same effect see Swedesboro L. & B. Assoc. v. Gans, 20 Dick. 132, in which the old rule as to ignorance of the law is said to be subject to so many exceptions that it is quite as often inapplicable as applicable; Williams v. Hamilton, 104 Iowa, 423, 73 N. W. 1029, in which the court declares it to be well settled that a mistake as to law may under certain circumstances afford ground for relief in equity; and Allcard v. Walker, [1896] 2 Ch. 369, 381, in which the proposition that relief never can be given in respect to a mistake of law was called inaccurate. So it has been said that the important question was not whether the mistake was one of law or of fact, but whether the particular mistake was such as a court of equity will correct, and this depends upon whether the case falls within the fundamental principle of equity that no one shall be allowed to enrich himself unjustly at the expense of another by reason of an innocent mistake of law or of fact entertained by both parties. Park Brothers v. Blodgett, 64 Conn. 28, 29 Atl. 133; Blakemore v. Blakemore, 19 Ky. L. Rep. 1619, 1620, 44 S. W. 96; Dinwiddie v. Self, 145 Ill. 290, 305, 33 N. E. 892; Benson v. Bunting, 127 Cal. 532, 59 Pac. 991; Order of United Commercial, etc., of America v. McAdam, 125 Fed. 358, 368, 61 C. C. A. 22; Stone v. Godfrey, 5 DeG. M. & G. 76, 90; Naylor v. Winch, 1 Sim. & Stu. 555, 564; Re Saxon Life, etc., Soc., 2 Johns & Hen. 408, 412. This doctrine frequently has been applied to cases of the reformation of contracts; a fortiori, it is to be applied to cases in which justice can be obtained only by a complete rescission. Canedy v. Marcy, 13 Gray, 373; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 299; Griswold v. Hazard, 141 U. S. 260, 35 L. Ed. 678, 11 Sup. Ct. 972, and cases cited on page 284. Carrell v. McMurray, 136 Fed. 661. Cases in which a release has been either avoided or restricted in its operation by a limitation of its general words rest really upon the same principle. Ramsden v. Hylton, 2 Ves. Sen. 304; Lyall v. Edwards, 6 H. & N. 337; Turner v. Turner, 14 Ch. D. 829; In re Garnett, 31 Ch. D. 1. So one who has made an election under a will may rescind it upon proof that he acted under a misapprehension of his legal rights or even in ignorance of the fact that he was bound to make an election. Watson v. Watson, 128 Mass. 152; Macknet v. Macknet, 29 N. J. Eq. 54; Pusey v. Desbouvrie, 3 P. Wms. 315, 316; Salkeld v. Vernon, 1 Eden, 64." 31 Dig. XXII, 6, 9, pr. and § 2, Civil law countries any distinction between mistake of law and mistake of fact, has now been disregarded. The German Code makes no difference, 32 the French 33 and Italian law 34 likewise put mistake of law on the same footing as mistake of fact, and such is the general modern tendency.35 § 1584. Exceptions to the rule denying relief for mistake of law. The formula that mistake or ignorance of law excuses no one is often used where the lack of relief is due to a more fundamental difficulty which would likewise have precluded relief if the mistake had been one of fact. Thus mistake by one party of the law governing his antecedent rights or his present agreement can afford no ground for relief if the mistake was not known to or induced by the other party, unless there is the further element of lack or failure of consideration. Again the distinction must be observed between (1) a mistake of law in the expression of an intended contract; (2) a mistake of law concerning legal consequences of a contract which were not covered by any antecedent agreement of the parties; and (3), a mistake of law concerning the rights of the parties prior to the transaction in question. A mistake of the first sort is not likely to occur except in connection with writings. A mistake of the second or third kinds may occur in connection with written or oral transactions whether executory or executed. It must be remembered also that in any event a mistake of law to justify rescission must have related to a question the answer to which was assumed as part of the fundamental basis of the transaction. A mistake of law as to some collateral mat translated by Pound, Readings in Roman Law (2d ed.), 37. 32 Sec. 119, translated, supra, § 1546, n. 37. "Baudry-Lacantinerie, Traité de Droit Civil (2d ed.) XI, § 70; translated by Pound, Readings in Roman Law (2d ed.), 37. 34 Civ. Code, Art. 1109. 35 See Pound, Readings in Roman Law (2d ed.), 37-43; Philippine Sugar Estates Development Co. v. Government of Philippine Ids., 247 U. S. 385, 38 Sup. Ct. 513, 62 L. Ed. 1177. 36 See Georgia Code, § 4575; Marshall v. Westrope, 98 Ia. 324, 67 N. W. 257; Wheaton, etc., Co. v. Boston, 204 Mass. 218, 90 N. E. 598; Dow v. Ker, Speers Eq. 413; Neff v. Rains, 33 Wis. 689. ter bearing on the motive for entering into the transaction on no principle can have greater importance than a corresponding mistake of fact. This will explain the decision of many cases where relief has been denied, professedly because the mistake was one of law. When the recognized exceptions to any general principle denying relief for that reason are taken into account, it will be seen that the scope of the rule, even in jurisdictions which fully recognize it, is much restricted. These exceptions may now be considered. 37. § 1585. Mistake of law as to meaning of instrument is ground for reformation. Where a written instrument fails to express the intention of the parties because of a mutual mistake as to the construction or legal effect of the words of the writing, though there is no misapprehension as to what words have been used, reformation is allowed. 38 It is not necessary, moreover, in order to establish See also a criticism of the rule regarding Mistake of Law, and an enumeration of exceptions in 32 Harv. L. Rev. 283. 38 Coldcot v. Hill, 1 Ch. Cas. 15; Wake v. Harrop, 1 H. & C. 202; Wilding v. Sanderson, [1897] 2 Ch. 534; Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52; Griswold v. Hazard, 141 U. S. 260, 35 L. Ed. 678; Philippine Sugar Estates Development Co. v. Government of Philippine Ids., 247 U. S. 385, 38 Sup. Ct. 513, 62 L. Ed. 1177; Oliver v. Mutual, etc., Ins. Co., 2 Curt. 277, 299; Abraham v. North German Ins. Co., 40 Fed. 717; Chicago & A. Ry. Co. v. Green, 114 Fed. 676 (cf. Goodno v. Hotchkiss, 237 Fed. 686); Moore v. Tate, 114 Ala. 582, 21 So. 820; Remington v. Higgins, 54 Cal. 620; Peers v. McLaughlin, 88 Cal. 294, 26 Pac. 119; Blakeman v. Blakeman, 39 Conn. 320; Haussman v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74; Park v. Blodgett, etc., Co., 64 Conn. 28, 29 Atl. 133; Allis v. Hall, 76 Conn. 322, 56 Atl. 637; Marshall v. Lane, 27 App. D. C. 276; Richardson v. Perrin, 137 Ga. 432, 73 S. E. 649; Kyner v. Boll, 182 Ill. 171, 54 N. E. 925; Sparta v. Mendell, 138 Ind. 188, 37 N. E. 604; Parish v. Camplin, 139 Ind. 1, 37 N. E. 607; Allen v. Bollenbacher, 49 Ind. App. 589, 97 N. E. 817; Stafford v. Fetters, 55 Ia. 484, 8 N. W. 322; Jamison v. State Ins. Co., 85 Iowa, 229, 52 N. W. 185; Hausbrandt v. Hofler, 117 Ia. 103, 90 N. W. 494, 94 Am. St. Rep. 289; Bottorff v. Lewis, 121 Iowa, 27, 95 N. W. 262; Coleman v. Coleman, 153 Ia. 543, 133 N. W. 755; Good Milking Mach. Co. v. Galloway, 168 Ia. 550, 150 N. W. 710; Hyde Park Inv. Co. v. Glenwood Coal Co., 170 Ia. 593, 153 N. W. 181; Worley v. Tuggle, 4 Bush, 168; Knuckles v. J. D. Hughes Lumber Co. (Ky.), 116 S. W. 1193; Cooke v. Husbands, 11 Md. 492; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Marine Sav. Bank v. Norton, 160 Mich. 614, 125 N. W. 754; Benson v. Markoe, 37 Minn. 30, 33 N. W. 38, 5 Am. St. Rep. 816; Scofield v. Quinn, 54 a mistake which may be reformed that it should be shown that particular words were misunderstood. "It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention." 39 But in a few jurisdictions if the parties knew the words in the instrument and intended to use those words their misapprehension of the legal effect of the language will not be ground for reformation.40 Minn. 9, 55 N. W. 745; Barnum v. White, 128 Minn. 58, 61, 150 N. W. 227; Cassidy v. Metcalf, 66 Mo. 519; Griffith v. Townley, 69 Mo. 13, 33 Am. Rep. 476; Corrigan v. Tiernay, 100 Mo. 276, 13 S. W. 401; Williamson v. Brown, 195 Mo. 313, 93 S. W. 791; Dry Goods Co. v. Grocer Co., 68 Mo. App. 290; McKim v. Metropolitan St. Ry. Co., 196 Mo. App. 544, 196 S. W. 433; Lansing v. Commercial Union Assur. Co., 4 Neb. (Unof.) 140, 93 N. W. 756; Webster v. Webster, 33 N. H. 18, 22, 66 Am. Dec. 705; Kennard v. George, 44 N. H. 440; Green v. Morris Co., 12 N. J. Eq. 165; McMillan v. Fish, 29 N. J. Eq. 610; Martin v. New York, etc., R. Co., 36 N. J. Eq. 109; Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391; Miller v. Savage, 60 N. J. Eq. 204, 46 Atl. 632 (rev'd on other grounds, 62 N. J. Eq. 746, 48 Atl. 1004); Pitcher v. Hennessey, 48 N. Y. 415; Maher v. Hibernia Ins. Co., 67 N. Y. 283; Bacot v. Fessenden, 130 N. Y. App. Div. 647, 124 N. Y. S. 370 (cf. Moran v. Wellington, 101 N. Y. Misc. 594, 167 N. Y. S. 465); Springs v. Harven, 3 Jones Eq. 96; Kornegay v. Everett, 99 N. C. 30, 5 S. E. 418; Clayton v. Freet, 10 Oh. St. 544; McNaughten v. Partridge, 11 Oh. 223; Ormsby v. Longworth, 11 Oh. St. 653; Evants v. Strode, 11 Oh. 480; Gross Construction Co. v. Hales, 37 Okl. 131, 129 Pac. 28; Talley v. Courtney, 1 Heisk. 715; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Mower v. Hutchinson, 9 Vt. 242; Beardsley v. Knight, 10 Vt. 185, 33 Am. Dec. 193; McKenzie v. McKenzie, 52 Vt. 271; Green Bay Co. v. Hewitt, 62 Wis. 316, 21 N. W. 216, 22 N. W. 588; Dietrich v. Hutchinson, 73 Vt. 134, 141, 50 Atl. 810, 87 Am. St. Rep. 698; Alexander v. Newton, 2 Gratt. 266; Biggs v. Bailey, 49 W. Va. 188, 38 S. E. 499; Whitmore v. Hay, 85 Wis. 240, 55 N. W. 708, 39 Am. St. Rep. 838; Lardner v. Williams, 98 Wis. 514, 74 N. W. 346; Wisconsin, etc., Bank v. Mann, 100 Wis. 596, 76 N. W. 777; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1. 39 Leitensdorfer v. Delphy, 15 Mo. 160, 167, 55 Am. Dec. 137, and see cases in the preceding note. 40 Rector v. Collins, 46 Ark. 167, 55 Am. Rep. 571; Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142; (but see Cal. C. C., §§ 1567, 1576, 1578); Wood v. Price, 46 Ill. 439; Atherton v. Roche, 192 Ill. 252, 61 N. E. 357, 55 L. R. A. 591; Allen v. Anderson, 44 Ind. 395; Nicholson v. Caress, 59 Ind. 39, 53; Easter v. Severin, 78 Ind. 540 (but see later Indiana cases supra note 38); Corning v. Grohe, 65 Ia. 328, 21 N. W. 662; Andrus v. Blazzard, 23 Utah, 233, 63 Pac. 888, 54 L. R. A. 354. See also Renard v. Clink, 91 Mich. 1, 13, 51 N. W. 692, 30 Am. St. Rep. 458; Reggio v. Warren, 207 Mass. 525, 535, 93 N. E. 805, 32 L. R. A. (N. S.) 340. In Goodno v. Hotchkiss, 237 Fed. 686, 696, the court said: "There was clearly no mistake of fact; the mistake, if any, was at the most a mistake as to |