
    [No. 4,310.]
    JOHN WRIGHT and JOHN H. SAUNDERS v. JAMES McM. SHAFTER.
    Relief nr Equity on the Gbound of Mistake. —A complaint in equity, claiming relief on the ground of mistake, must not only distinctly, aver the fact of the mistake, but also set forth the circumstances under which it occurred, in so far as those circumstances may be necessary to present a case within the rule of equity upon which relief is granted.
    Appeal from the District Court, .Third Judicial District, City and County of San Francisco.
    The complaint alleged that, on the 27th of November, 1858, Francisco Hurtado and Maria Dolores Hurtado were husband and wife, and that they borrowed from John D. Shafter four thousand dollars, and, to secure the payment of the same, gave him a mortgage on a tract of land in Marin County, .which was the separate property of said Maria, and that, on the 20th of August, 1869, they borrowed from him one thousand dollars, and gave a second mortgage to secure the same. That the defendant became the assignee of the mortgage, and foreclosed it, and the land was sold by the Sheriff on the 11th day of September, 1871, and the defendant became the purchaser, at seven thousand five hundred and seventy-six dollars and thirteen cents, and received the Sheriff’s certificate. That afterwards, and on the 9th day of March, 1872, Hurtado and wife sold to the plaintiffs. That the plaintiffs, on the 11th day of March, 1872, went to the Sheriff and asked him how much money it required to redeem from the sale, and were informed by him that it required eight thousand four hundred and eighty-six dollars; and that the plaintiffs relied on the. Sheriff’s figures, and supposed they were correct, and thereupon paid him said sum of eight thousand four hundred and eighty-six dollars, to effect a redemption. That they were informed on the 12th of March that the sum which they had paid the Sheriff was not enough to effect a redemption into ninety-six dollars, and that the Sheriff had given the defendant a deed. That they then offered to pay the defendant the ninety-six dollars and all costs and expenses he had been at, if he would give them a deed, but that he declined. That the land was worth twenty thousand dollars, and that the plaintiffs were prepared on the 11th of March to have redeemed the property, The plaintiffs offered to pay the defendant the ninety-six dollars, and all costs and expenses he had incurred, and asked that he be compelled to convey to them.
    The defendant demurred, and the Court overruled the demurrer. He then answered, and the Court gave the plaintiffs judgment.
    The defendant appealed.
    J. McM. Shafter, in pro. per.
    
    
      J. R. Sharpstein and H. H. Haight, for the Respondents.
   By the Court:

The plaintiffs claimed, and in the Court below obtained relief on the ground that a mistake occurred upon their part, in attempting to effect a redemption from the Sheriff’s sale on foreclosure of a mortgage. It is well settled that a complaint claiming relief on the ground of mistake must not only distinctly aver the fact of the mistake, but also set forth the circumstances under which it occurred in so far as those circumstances may be necessary to present a case within the rule of equity upon which relief is granted. Tested by this rule, the complaint here is radically defective,- and the demurrer should have been sustained.

Judgment and order denying new trial reversed, and cause remanded, with direction to sustain the demurrer to the complaint. Remittitur forthwith.  