
    *Irick & Wife v. Fulton’s Ex’ors.
    July Term, 1846,
    Lewisburg.
    1. Sale of Land — Mutual Mistake — Effect.—Upon a mutual mistake of parties as to the interest of the vendor in the land sold, a Court of Equity will, under the circumstances, set aside the sale entirely.
    2. Same — Failure to Make Demand Prior to Filing Bill to Set Aside — Rents and Profits. — Where no demand has been made by the vendor previous to filing his bill to set aside the sale, the Court will only decree rents and profits from the filing of the bill; and will decree interest on the purchase money from the same time.
    3. Same — Permanent Improvements — Right of Vendee to. — The vendee, or his vendee, will be entitled to compensation for permanent improvements made upon the land; but not to exceed the amount due for rents and profits.
    On the 10th of August 1813, John Hogue and Hannah his wife executed a deed, by which, in consideration of the natural love and affection they bear to Betty Havely, the mother of the said Hannah, and the wife of Jacob Havely, they conveyed to Andrew Russell, James White and Francis Smith, a lot in the town of Abingdon, which the said Russell, White and Smith covenanted to hold “to the only proper use and sole benefit of said Betty Havely and her heirs; to manage the same in whatever way they might think most conducive to the interest of said Betty and her heirs; and upon the death of the aforesaid Jacob, the husband of said Betty, to convey the property aforesaid to the said Bett3T and her heirs, if she should then be alive, if not, then to her heirs aforesaid.”
    During the lifetime of Betty Havely, John H. Fulton purchased the interest of several of her children in this lot; and among others of them, that of Hogue and wife.
    Betty Havely survived her husband, but the lot was not conve3Ted to her by the trustees ; and in November 183S, she died, having made her will in October of that year, by which she gave all that she then had, or might have at her death, to her daughter Betsy Irick, wife of ^Conrad Irick, and her heirs, “on condition that she live where she now lives near my residence, during my life.” But if Betsy Irick moved away, then the property was given to the testatrix’s three children, Isaac, Charles and Hannah.
    After the death of Betty Havely, Irick and wife sold their interest in the lot to John H. Fulton; and he dying before a conveyance, they by deed dated the 1st of May 1837, conveyed it to his executors. At this time both parties believed that Mrs. Irick only took an equal share of the lot with her brothers and sisters. Fulton’s ex’ors sold and conveyed the lot to George V. Litchfield.
    After the conveyance to Litchfield, Irick and wife filed their bill in the Superior Court of the county of Washington, against Fulton’s ex’ors, Litchfield, and the other children of Betty Havely, in which, after setting out the deed of the 10th of August 1813, and the will of Betty Havely, they insisted that under the first, Betty Havely had the fee simple interest in the lot; and that she had, b3r her will, given it to the female plaintiff, upon a condition which had been complied with. They alleged that the sale to Fulton, and the conve3rancc to his executors were made under a total ignorance of the extent of their interest in the lot. They therefore ask that their deed to Fulton’s ex’ors may be cancelled, upon the repayment of the purchase money; and that the executors ma3r be required to account for the rents and profits from the time they took possession of the lot. That the trustees may be compelled to convey the lot to the female plaintiff; and they ask for general relief,
    Fulton’s ex’ors answered, admitting the deed of the 10th of August 1813, and the will of Betty Havely. But they insisted that the deed gave to her but a life estate in the lot, with remainder to her children. That this was the construction which had always been put *upon it by the parties. That their testator, had purchased the interest of several of the children of Betty Havely in her lifetime ;■ and as they believe with her knowledge and consent. That the plaintiffs, as the re^ spondents believe, were fully aware of the extent of their rights and interest in, tffe property at the time the3T made the conveyance ; and they refer to the deed -of the-complainants, in which they recite, “that the property was conveyed to the said Betty Havely for life, with remainder to her children,” in confirmation of the construction which the respondents gave to the deed of the 10th of August 1813. , . , ■
    The cause came on to be heard in October 1841, when the Court dismissed the bi’l with costs. From this decree the plaintiffs applied for and obtained an appeal to, this Court.
    B. R. Johnston, for the appellants.
    Stuart and Michie, for the appellees.
    
      
      Sale of Land — Mutual Mistake as to Interest in the Title — Effect.—For the proposition that the contract founded on a mutual mistake of the facts constituting the very basis of such contract, will be set aside by a court of equity, the principal case is cited with approval in Zollman v. Moore, 21 Gratt. 324; Harner v. Price, 17 W. Va. 548; Pennybacker v. Laidley, 3W. Va. 642, 11 S. E. Rep. 46; Bluestone Coal Co. v. Bell, 38 W. Va. 308, 18 S. E. Rep. 497.
    
   BALDWIN, J.,

delivered the opinion pf the Court.

By the true construction of the deed of the 10th of August 1813, from John Hogue and Hannah his wife, to the trustees Francis Smith, Andrew Russell and Janies White, Betty Havely, in the event which has happened, of her surviving her husband Jacob Havely, became entitled to an .equitable estate in fee in the property thereb3r conveyed to said trustees, and the right to call upon them for a conveyance of the legal title thereto.

By the last will and testament of said Betty Havel3r, her said equitable estate became vested in her daughter, Elizabeth Irick, the female appellant, there being neither proof nor averment that she forfeited the benefit of the devise to her by changing her home during the life of the testatrix.

*By the contract evidenced by the deed of the 1st of May 1837, from the appellants Irick and wife, to the executors of John H. Fulton deceased, made under the belief of the parties, that the said Elizabeth Irick was entitled only to an undivided interest or share in said property1, as one of the children and heirs of said Betty Havely, the parties only sold and purchased, and only intended to sell and purchase, such undivided interest: and consequently neither said Fulton’s ex’ors, nor the purchasers under them have acquired the said Elizabeth Irick’s right to a greater extent than such undivided interest; nor are there any circumstances in the case to preclude the appellants from asserting and recovering so much of their right to said property as was not embraced in their said sale to said Fulton’s ex’ors.

Such recovery by the appellants would leave to the purchasers under Fulton’s ex’ors an inconsiderable undivided interest in said property, and ought to lead, tc a rescission of the said contract between the appellants and said Fulton’s ex’ors, the same having been made by the parties thereto under the mutual mistake that the other children and heirs of said Betty Havely were entitled to undivided interests in • said property, and that the same had been acquired by said Fulton’s purchases from' them;

The appellants ought to recover the whole of said property, and a deed of conveyance of the legal title thereto be made by said trustees to the female appellant. And the purchase money paid by Fulton’s ex’ors to the appellants ought to be refunded with interest thereupon from the filing of the bill. The appellants ought moreover to recover the rents and profits of said property from the parties who received the same, but only from the time of filing their bill, there not appearing to have been any previous demand for the surrender of said property, and the possession thereof having been held by said Fulton’s ex’ors, and the purchasers, under them, with the assent of the appellants, until the discovery by '“'them of the true state of the title. And the appellants ought to be required to account to the proper person or persons for any permanent improvements made upon the property, during the existence of the mistake in regard to the title: provided .the amount thereof shall not exceed the rents and profits which shall be ascertained to be due to the appellants.

The Court is therefore of opinion, that the said decree of the said Circuit Court, dismissing the bill of the appellants is erroneous ; it is therefore adjudged, ordered and decreed, that the same be reversed and annulled, with costs to the appellants. And the cause is remanded to the said Circuit Court, to be there further proceeded in according to the principles above declared, and in the further proceedings the proper accounts are to be taken between the parties.  