er case requiring such action? This question, if thoroughly considered and completely answered, would involve much that would be entirely unnecessary to the decision of this case. It would require me to trace the limits and fix the bounds of my jurisdiction in this regard. For example, Chancellor McGill, in the Straub Case, declared that the demand for probate in solemn form might be made at any time within 30 years. It is said, as to the present English practice, that any party whose interest is adversely affected by a probate granted in common form may, without any limitation of time, call it in and put the party who obtained it, or his representative, upon proof of the will in solemn form. Tristram & Coote, Prob. Prac. 353. But there is legislation in England protecting an executor against payments, etc., made before the revocation of the probate under that practice. The ancient practice seems to have considered a time to be limited, according to Swinburne, to 10 years, but, according to Dr. Godolphin, to 30 years. 4 Burn's Ecc. Prac. 199. Obviously, I ought not to determine in this case the extent of time within which such relief may be sought. For if a party seeking relief comes without laches, as the petitioner does, the question of the extent of the limitation of time is of no consequence.

Nor is it necessary in this case to definitely determine what kind or what amount of proof is requisite to move the court to grant such relief. Under the English practice, it would seem that the court exercised its power to require probate in solemn form almost as a matter of course. When the probate was granted upon the mere affidavit of the executor that he believed the instrument propounded was the last will of the decedent, there would seem to be a reason for such a practice, which would not apply where probate, though without notice, is only granted upon proof of the instrument as a will. Yet, in many cases, ground was shown for the exercise of the power. Under our practice, pursuant to which a contest may be raised by any one interested by caveat or appeal, I think probate in solemn form ought not to be compelled except upon some good ground shown. It is manifestly unnecessary to prove that the probate previously granted had been improperly granted, by showing that testator did not, in fact, possess testamentary capacity, or that the will was in fact the product of undue influence. It will be sufficient to justify the ordinary in requiring probate on notice if there is made to appear to him a fair ground for contesting the validity of the will in respect to its execution, or the testamentary capacity of the testator, or as to the will being the product of undue influence.

It is equally unnecessary to decide in this case who may apply for probate in solemn form. If any person who is sui juris has 55 A.-6

knowledge of the death of the testator and of grounds for contesting his will, or might by due diligence have discovered such grounds, and has neglected to caveat against probate being granted, it could hardly be conceded that he could afterward be heard to demand that an executor should be required to re-prove the will on any such grounds.

Applying these views to the case in hand, I think the power to require probate in solemn form ought to be exercised. Petitioner, the widow of the deceased, appears to be a minor. If the executor had elected to prove the will on notice to all persons concerned, he would have been obliged to give notice to her, and, unless some person appeared for her, to procure the appointment of a guardian ad litem for her, who would have represented her in the proceeding. She is therefore a person concerned who may now apply for this relief by a next friend, and it cannot be denied that the application has been made within a reasonable time.

The facts asserted and admitted, in my judgment, justify the conclusion that a case for relief of this nature is presented. The will and codicil were admittedly drawn by the legal adviser and confidential agent of the deceased. Testator is admitted to have been addicted to the excessive use of intoxicating liquors, as a result of which he suffered many attacks of delirium tremens, and from time to time was treated in sanatoriums. There is evidence of his condition, at or about the time the will and codicil were executed, sufficient to justify inquiry as to his capacity. There is further evidence respecting the mode of execution of the will and codicil sufficient to justify the examination of the persons present at the execution, and particularly the persons who signed as testamentary witnesses.

It is not improper to add that these considerations are re-enforced by the admitted fact that petitioner under a previous will was given a much larger share of her husband's estate, and under the will and codicil here in question her share is much diminished, and a large share of the estate is given to testator's friend and adviser who drew and superintended the execution of these papers.

My conclusion, therefore, is that the executor in this case should be required to prove this will and codicil in solemn form, upon notice to all parties concerned. A convenient practice in that regard is that now in use in the English probate courts, whereby the executor is cited to bring in his probate and to show cause why it should not be revoked and the will pronounced invalid. Tristram & Coote, Prob. Prac. 367.

An order will be made continuing the restraint upon the executor, and directing him to bring in his probate on a day fixed, of which he shall give notice to all parties concerned, and on that day to proceed to prove the will as if propounded upon notice.

(65 N. J. E. 132)
SWEDESBORO LOAN & BUILDING
ASS'N v. GANS et al.

(Court of Chancery of New Jersey. June 5, 1903.)

CANCELLATION OF MORTGAGE MISTAKE OF LAW-RELIEF IN EQUITY.

1. On the death of a mortgagor, complainant, the mortgagee, secured a release of the widow's right of dower in the premises, and also a deed from the mortgagor's father, under the belief that the property descended to the latter, and canceled the mortgage. No consideration was paid for such cancellation. Held that, as against the heirs of the mortgagor, complainant was entitled to a decree for the re-establishment and foreclosure of the mortgage.

Suit by the Swedesboro Loan & Building Association against James Gans and others. Decree for complainant.

Norman Grey and W. B. Wolcott, for complainant. Thomas E. French and Samuel Richards, for defendants.

REED, V. C. This suit is brought to have a mortgage, which has been canceled upon the record, re-established and foreclosed. The facts, as I gather them from the pleadings, from the meager testimony, and from the position taken by counsel, are as follows: One Charles Gans, of Gloucester county, made a mortgage dated March 11, 1892, to the Swedesboro Loan & Building Association, to secure the sum of $1,100, payable in one year. Charles Gans, the mortgagor, died June 9, 1894, intestate, leaving, him surviving, his widow, Kate P. Gans, and as his heirs two brothers, James and John, and three sisters, Jennie, Phebe, and Mary. On April 1, 1895, the widow released to the complainant her right of dower in the mortgaged premises. The complainant accepted a deed from one Sebastian Gans, the father of Charles, the deceased mortgagor, under the belief that on the death of Charles the property descended to his father. After the execution of this deed the loan and building association, believing that it held the legal title to the premises, on August 5, 1895, canceled its mortgage. The procuration of the deed from Sebastian Gans seems to have been accomplished by one Benjamin McAllister, who was a scrivener, and was at one time a director of the building association and did writing for them, and who seems also to have been mixed up in the settlement of the estate of Charles Gans. He apparently acted as intermediary between the building association and the Ganses, and got the deed, which the complainant accepted, upon his word, as a conveyance of the equity of redemption in the mortgaged premises. Upon the execution of this deed the complainant went into possession, and has since received the rents and profits therefrom. There can be no doubt that the cancellation of the mortgage was induced by the belief that by force of the deed of Sebastian Gans the loan association owned a complete title to the property.

It is thus manifest that the equity of the situation is entirely with the complainant. The defendants, as heirs of Charles Gans, received the property subject to the lien of this mortgage. The cancellation of the mortgage was a pure gift to the defendants of the mortgagee's interest in the property. The heirs had not paid one cent to bring about this change in the respective position of mortgagee and heirs. Neither has any purchaser, bona fide or otherwise, come into existence upon the faith of the cancellation of the mortgage. It is clear, therefore, that, unless some inexorable rule compels otherwise, the complainant should be relieved from the predicament into which it was misled by its belief in its ownership of a complete title to the mortgaged property.

The substantial ground upon which the heirs resist the granting of this relief is that, while the cancellation was caused by a mistake of the complainant, it was a mistake of law, and not of fact. The maxim, "Ignorantia juris excusat non," is invoked by the defendants. This maxim is subject to so many exceptions that it is quite as often inapplicable as applicable to suppose mistakes of law.

That the present case, involving the release of private rights under a mistaken notion as to private ownership of property, is one in which the English courts of chancery would afford prompt relief, cannot be doubted. The line of cases granting relief where a man purchased his own property through mistake (Bingham v. Bingham, 1 Vesey, 127), or where a release was made so broad in its terms as to release rights of property of which the party was ignorant (Chalmondley v. Clinton, 2 Mer. 171), or where a party, under the misapprehension that he had no title, surrendered to the supposed owner (Pusey v. Desbouvie, 3 P. Wm. 315), exhibit the degree in which courts of equity granted relief from such mistakes. In Livesey v. Livesey, 3 Rus. 287, an executrix who, under a mistaken construction of a will, had overpaid an annuity, was permitted to deduct the amount overpaid from subsequent payments. In McCarthy v. Decaix, 2 Rus. & My. 614, a person was relieved where he had renounced a claim of property made under a mistake respecting the validity of a marriage; the Lord Chancellor saying, "What he has done was in ignorance of the law, possibly of fact; but in a case of this kind this would be one and the same thing." In Cooper v. Phibbs Lr., 2 H. L. 142-172, s. c. Eng. Rul. Cas. 870, an agreement was canceled because it had been entered into through a mistake as to the ownership of a fishery. In this case Lord Westbury expressed the much-discussed sentiment that the word "jus" in the maxim is used to denote a general law, and has no application to private rights. The result of this decision of the House of Lords was that an act caused through a mistake as to own

ership of property would be remedied in equity. In Beauchamp v. Winn, 6 H. L. 223-264, s. c. 22 Eng. Rul. Cas. 889, a mutual mistake in an agreement as to the rights of the parties resulted in a correction of the agreement.

The result of the English cases is summed up by Mr. Kerr in the remark "that if a man, through misapprehension or mistake of the law, parts with or gives up private rights to property, ог assumes obligations, upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if, under the general consideration of the case, it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantage so acquired." Kerr on F. & M. p. This statement of the equitable rule was cited with apparent approval by Chancellor Runyon in Macknet v. Macknet, 29 N. J. Eq. 54-59, and in Martin v. N. Y. S. & W. R. R., 36 N. J. Eq. 109-112.

-.

The equity cases in this country, more particularly the earlier cases, exhibit a less liberal spirit in granting relief for mistakes in law. This resulted mainly, I think, from the great influence which the early reported cases decided by Chancellor Kent had in shaping the early equity jurisprudence of this country. The case of Lyon v. Richmond, 2 Johns. Ch. 60, was an application to set aside an agreement because it was entered into under the influence of a supposed condition of the law, and afterwards the Court of Errors rendered a decision which changed the law as it was supposed to exist when the agreement was made. In deciding that the court could grant no relief, Chancellor Kent, having in mind, of course, the particular facts of that case, made some general remarks in respect to the impolicy of a court of equity attempting to relieve against mistakes of law. These remarks appear again and again in the earlier cases, being used as a general authority against the granting of relief in all cases of mistakes of law. These remarks appear in the opinion in the decision in the case of Garwood v. Adr. of Eldridge, 2 N. J. Eq. 145, 34 Am. Dec. 195, which case is invoked as conclusive against the restoration of this mortgage. In that case Chancellor Pennington declined to establish certain mortgages which had been canceled by a mortgagee who purchased the equity of redemption, and by the cancellation a judgment, of the existence of which the mortgagee was ignorant, became a superior lien upon the property. The chancellor stated the rule to be that relief would not be granted to the complainant if his mistake was as to the legal effects of the cancellation in advancing the lien of the judgment. The remarks of the chancellor were uncalled for, because he found that there was no mistake of law at all. The mistake was in the mortgagee's failure to search the record, the result of his negligence being that he was unaware of the existence of the judg

ment. His mistake was one of fact, and the negligence of the complainant was the real ground for his defeat. This case and Lyon v. Richmond, supra, are cited in the case of Bentley v. Whittemore, 18 N. J. Eq. 366374, in which case Chancellor Zabriskie stated that certain mortgages which had been canceled upon the faith of an assignment, which assignment he held to be void, could not be restored because the cancellation was induced by a mistake at law. This case was reversed (19 N. J. Eq. 462, 97 Am. Dec. 671), the Court of Appeals holding that the assignment was valid. The assignment, therefore, being valid, the question of the establishment of the canceled mortgages was eliminated from the case, and the chancellor's remarks became dicta.

The remarks of Chancellor Kent appear in Executors of Wintermute v. Ex. of Snyderet al., 3 N. J. Eq. 489, where there was an assignment of the interest of certain parties under a will, and their ignorance of their rights under that instrument misled them to the execution of the assignment. Chancellor Vroom refused to grant relief, upon the ground that the mistake was one of law. The learned chancellor, however, was careful to exclude the inference that in his judgment there could be no instance where equity could relieve against mistakes of law. The case itself holds that this dispositive instrument, the execution of which had been induced by mistake of law, would not be rectified. This was the doctrine announced by Chancellor Runyon in Hampton v. Nicholson, 23 N. J. Eq. 423. The chancellor said that where a purchaser accepts a deed by which no title is conveyed when there is no misapprehension as to the facts and no fraud and no warranty of title, he has no redress in law or equity. But in that case a mortgage had been canceled, and the chancellor proceeded to remark: "If the mortgage had been canceled without actual payment on the mistaken supposition that the deed merged and satisfied it, and the debt of three hundred dollars due from the testator to the complainant had been given up and discharged on the belief that it was satisfied by the amount due for the conveyance, this canceling and satisfaction, being entirely without consideration, could in equity be set aside, and the debts be declared to be subsisting." In Skillman et ux. v. Teeple, 1 N. J. Eq. 232, the holder of notes released a mortgagee from his liability upon the notes under a misapprehension as to her legal rights at the time. Drake, Master, said: "In this case there can be no doubt that the complainant and Teeple acted under a mistake or misapprehension of her rights. Under such a mistake she signed a parol agreement without any consideration, and highly prejudicial to her interests. I am of the opinion that the agreement should be set aside."

Our later cases display a desire to dis

cover some ground to rectify an inequitable result flowing from mistakes of all kinds. Chilver v. Weston, 27 N. J. Eq. 435; Macknet v. Macknet, supra; Martin v. N. Y. S. & W. R. R., supra; Young v. Hill, 31 N. J. Eq. 429. The ability of courts of equity to rectify mistakes arising from ignorance of the law is everywhere acknowledged to exist in certain instances. The propriety of exercising this power must depend upon the circumstances which surround each case. It will depend upon whether a party who asks relief has been negligent; whether he has been led into his belief by the other party; whether other innocent parties will be injured by a rectification of the mistake; or whether the mistake can be regarded as one of fact, although indirectly resulting from a mistaken notion of the law. All these and other features are to be considered in deciding whether it is equitable and politic to put the mistaken party in statu quo. The cases in which the power has been exercised are collected and classified in 20th Enc. of Law (2d Ed.). p. 16. In my judgment, the power should be exercised in the present case. The mistake was in respect to the ownership of the property upon which the canceled mortgage was an incumbrance, and the English cases treat such a mistake as one of fact.

Again, the annulment of the mortgage was without any consideration whatever. Nothing was received by the mortgagee and nothing was paid by the heirs. The language of the Supreme Court of Maine (Freeman v. Curtis, 51 Me. 140-145, 81 Am. Dec. 564) in respect to the execution of a release induced by a mistaken notion of the rights of the releasor is pertinent. The court said: "There was nothing between the parties as a basis for any negotiation, and there was no claim of the one against the other, valid or invalid. It was an isolated actthe obtaining of a release of five-sixths of a valuable estate without any pretense of any consideration, through the ignorance of the parties giving it. Whether the defendant was ignorant or not, it would be a reproach to the law if he should now be permitted to retain the fruits of such a proceeding." In my judgment, the heirs cannot, in the present case, equitably retain the advantage which the mistaken act of cancellation gave them.

It is said, however, that the complainant was negligent in not applying earlier for relief. It does not so appear. Nothing appears to show when it obtained its knowledge of the true condition of affairs. The complainant has been in possession since 1895. If negligence rested anywhere, it would seem to be upon the parties who permitted the complainant to receive the rents and profits from the property up to the present time.

There should be the usual decree of foreclosure, with reference to a master to take

an account of the rents and profits as a basis for ascertaining the amount due upon the mortgage.

(65 N. J. E. 5)

HAYES et al. v. UNITED STATES PHONOGRAPH CO. et al.

(Court of Chancery of New Jersey. May 26, 1903.)

JUDGMENT-RELIEF IN EQUITY-BILL-SUFFICIENCY-NEW TRIAL.

1. A bill seeking relief against a judgment at law on the ground that the complainants had a valid legal defense to that action, which they were prevented from presenting because the evidence on which such defeuse could be made was not discovered until after the trial and judgment, must not only show the relevancy or materiality of such evidence, but must also show that proper diligence had been used in the preparation for such trial, or that no diligence would have discovered such evidence, and it is demurrable if it fails to make such averments.

2. Since the passage of the amendment to the practice act, which permits application for a new trial at law after the term (2 Gen. St. p. 2589, § 328), a court of equity will decline to exercise its jurisdiction in respect to new trials when the relief sought may be obtained by an application to the court of law.

(Syllabus by the Court.)

Bill by Howard W. Hayes and Simon S. Ott against the United States Phonograph Company and others. Demurrer to bill sustained.

Joseph L. Munn, for complainants. ward Q. Keasby, for defendants.

Ed

MAGIE, Ch. The United States Phonograph Company and J. Stogdell Stokes, two of the defendants, demurred to the bill in this cause. The prayer of the bill is that the said company and Charles H. Burr, Robert C. Banes, and J. Stogdell Stokes may be decreed to refund and pay back to the complainants, as executors of George W. Tewksbury, deceased, the amount, with interest, of a judgment recovered against complainants as such executors, and paid by them. The facts upon which this prayer is predicated are stated in the bill as follows: That the complainants are the executors of George W. Tewksbury, deceased, holding letters testamentary from the surrogate of the county of Essex, in which the testator died; that an action was brought against them, as executors, for the recovery of money alleged to be due from the testator to the United States Phonograph Company; that the action was brought in the circuit court of Essex county, and came to trial before that court upon the plea of the general issue interposed by complainants; that the trial resulted in a verdict in favor of the company for $2,197.05, upon which verdict a judgment was entered, and the amount of the judgment was afterwards paid to the said company by the complainants; that the complainants have since learned that at the time the action was

1. See Judgment, vol. 30, Cent. Dig. § 884.

brought the sum above mentioned was no longer due from the testator or his estate, but had been assumed and agreed to be paid by one Challenger; that said Challenger had, before the institution of said suit, executed and delivered to said company his written obligation to pay said sum, and assigned to said company certain collateral securities for its payment, which obligation and securities said company had accepted in settlement and satisfaction of its claim; and that complainants had no knowledge or information at the time of the trial as to the assumption of the debt by Challenger, or of the acceptance by the company of the obligation and security given by Challenger to the company. The bill charges that the obligation of Challenger, with the collateral security, was in the possession of the company at the time of the pending of the suit and its trial, and was known to the officers of the company, who concealed the same from the complainants.

The specific relief prayed for in the bill is a decree for the refunding of the money paid by complainants upon a judgment obtained against complainants, and yet remaining upon the record of the court in which it was rendered. While that judgment remains open and unreversed, it presents an absolute bar against the recovery by complainants, in an action at law, of the money which they have paid thereon. An appeal to a court of equity for relief against a judgment voluntarily paid must be supported by charges of facts justifying such relief. In the case made by the bill, it is not sought to interfere with the judgment in question because complainants had an equitable defense which could not be interposed in the action at law. The ground of interference claimed is that complainants, being defendants in the action in which the judgment was rendered, had a valid legal defense on the merits, which they were prevented from maintaining by fraud, mistake, or accident; there having been no negligence or laches in respect to such defense. 3 Pom. Eq. Jur. § 1364. When such a case for interference is made out, and the judgment has not been paid, relief is granted by enjoining the enforcement of the judgment until the plaintiff has consented to a new trial, or a new trial will be otherwise had. 2 Pom. Eq. Jur. § 836; Cairo & Fulton R. R. v. Titus, 32 N. J. Eq. 397. When such a case for interference with the judgment has been made out, and the judginent has been enforced, equity will require repayment or restoration of money or property inequitably received upon the judgment. Williamson v. Johnson, 5 N. J. Eq. 537; Herbert v. Herbert, 47 N. J. Eq. 17, 20 Atl. 290; Id., 49 N. J. Eq. 70, 22 Atl. 789. In the case last cited, a plaintiff in attachment, who had purchased lands under a sale made upon his judgment in the attachment proceedings, was decreed to reconvey the lands, upon proof that the judgment had been inequitably obtained. The Court of Errors, on appeal,

affirmed the decree, with the addition that the plaintiff in attachment should be forever enjoined from enforcing his judgment, unless he should, within a specific time, open the same, and let in the defendant to defend the suit. Herbert v. Herbert, 49 N. J. Eq. 565, 25 Atl. 366,

Whether, upon such a bill, the appropriate decree would enjoin the enforcement of the judgment, or require restoration of something obtained by its enforcement, is immaterial to the present inquiry. For the bill, in either aspect, is a bill for a new trial on the ground of newly discovered evidence. It is well settled that such a bill must disclose the character of the evidence alleged to have been discovered, so as to show its relevancy and materiality, and that it should further make known that there had been proper diligence used in the preparation for the trial of which complaint is made, or that no diligence would have succeeded in bringing the evidence to light in time. Failure in these particulars is held by the Court of Errors to render such a bill demurrable. Hannon v. Maxwell, 31 N. J. Eq. 318.

It may be open to question whether this bill discloses evidence material to the defense of the action at law. There was admittedly an obligation of the testator to the company. The bill does not assert that it was released, but only that another obligation was substituted therefor. Whether a case of novation is stated is doubtful. Addison on Contracts, 372. But there is no attempt made in the bill to show that complainants used such diligence as was required of them to discover evidence for the trial at law, or any diligence at all. On the face of the charges of the bill, it would seem that due diligence would have disclosed the present alleged defense. But if that is not a justifiable inference, the rules of equity pleading at least require a statement of the diligence in fact used. For this fault, the demurrer must be sustained.

The bill is also faulty in another respect. Bills of this character are not entertained by a court of equity if relief on the case made can be obtained by resort to the court of law. When courts of law refused to consider application for new trials, courts of equity exercised jurisdiction in relieving against judgments which had been obtained when relevant material evidence had not been próduced in defense, because the defendant, although diligent in preparation, had not discovered it. But as courts of law came to listen to applications for new trials on the ground of newly discovered evidence, courts of equity withdrew from the exercise of the jurisdiction. Hannon v. Maxwell, ubi supra. While the jurisdiction of the courts of law in allowing new trials was restricted to applications made during the term at which the judgment had been entered, courts of equity exercised their jurisdiction, to afford relief in such cases when the newly discov