
    Lamb v. Smith.
    November, 1828.
    Parol Sale of Land — Histake — Equitable Relief— Rescission of Contract. — Where a vendor sells a lot of land by parol; puts the purchaser in possession, and receives the purchase money, but conveys a different lot: On a Bill filed by the purchaser, requiring the vendor either to correct the mistake by conveying the lot really purchased, or to refund the money, the Court of Equity, on being satisfied that the vendor had no title to the property sold, will rescind the contract, and decree the money to be refunded.
    John M. Smith, exhibited his Bill to the Chancellor of the Richmond District, setting forth, that in the year 1814, he purchased of a certain William Lamb, a lot of land in the City of Richmond, forty-three feet "one way, and one hundred and thirty feet the other, for which he agreed to give seven hundred dollars: that on the lot thus purchased, there stood a small house, of which, with the lot itself, the Plaintiff was immediately put iu possession, and that he *bas paid the whole amount of the purchase money: that being satisfied with the soundness of Lamb's title, and that he could obtain a title whenever he should demand it, he never did demand it at all, but that some time in the year 1816, the said Lamb and his wife, conveyed to the Plaintiff a totally different piece of land, having no building on it, and worth scarcely one-tenth part of the land actually sold: that the Deed was lodged in the Office, and duly admitted to record, but was never- presented to the Plaintiff, nor accepted by him, nor ever sanctioned by him in any other m.anner whatever: that there was no written contract between them; but the Complainant exhibits a diagram of the lot purchased, and of that conveyed, by which it appears that they are both on the same square, but the lot conveyed is at right angles with the lot sold, and the former includes only forty-three feet square (at the remote end,) of the latter, running on to a different street for quantity. Each lot, is however, forty-three feet one way, by one hundred and thirty the other. He avers that he never contemplated a purchase of any but the lot on 0which the house stood, of which he received possession from the Defendant himself: that he would not have given the same price for the other lot, nor wished to purchase it, as the Defendant well knew. He avers that he did not know of the Deed, until informed of it by the Clerk; he then took the Deed out of the Office, but relying on its correctness in every tespect, did not immediately examine it. When he did examine it, he found, to his great surprise, that it was not only imperfect, but did not purport to convey to him the property he had purchased, but different property, which he would not have as a gratuity. He immediately communicated these facts to the Defendant, and demanded of him either a Deed for the lot actually sold, or the return of the purchase money, both of which were refused. As the Deed was thus fraudulently forced upon him, under a total ignorance and mistake on his part, and he refused to acquiesce in the fraud as soon as it was detected, he prays for relief.
    *The Defendant in his Answer admitted, that he had agreed to sell the Plaintiff a lot in the City of Richmond, of the dimensions mentioned in the Bill, and that he had received the purchase money. He avers that he,has made a Deed conveying, as he supposed, and still supposes, the very property he sold the Plaintiff, “but that the Respondent is an illiterate man, and knows only from the information of others the contents of Deeds executed to him, or by him. ” He says that his intention was to sell to the Complainant the lot which he himself had brought of James Boulton, and which Boulton had bought of Col. Richard Adams. He avers that he believes that he has conveyed to the Plaintiff the identical property conveyed by Boulton to him, and that he supposed it to be the very lot which the Plaintiff claims, that he bought. If it be not, he alleges that he himself has been imposed on by Boulton, and that Boulton’s heirs or devisees ought to be made parties to this suit, and compelled to execute the conveyance.
    A survey of both lots was ordered by the Court of Chancery. According to the plat returned, it appears that the diagram, exhibited by the Plaintiff with his Bill, was substantial^' correct. Each lot was forty-three feet nine inches in front, running back one hundred and thirty-two feet. They fronted on different streets, and were at right angles to each other, the lot conveyed only including forty-three feet nine inches of the lot sold.
    Sundry depositions were taken in the cause; and the Court of Cháncery, being satisfied that the proofs fully supported the allegations of the Plaintiff’s Bill, decreed, that the Deed from the Defendant to the Plaintiff, be delivered to him to be can-celled, and that the Defendant pay the Plaintiff the sum of seven hundred dollars, with interest thereon from the 8th November, 1819, till paid, and costs. F.rom this Decree, the Defendant, Lamb, appealed to this Court.
    *Daniel, for the Appellant.
    The Attorney General, for the Ap-pellee.
    
      
      Contract— Rescission — Mistake.—ft is well-settled law that, although there be no fraud, or default on either side, yet the mutual error of the parties, if that error be in a matter which is the cause of the contract, that is, is the substance of the thing contracted for, is a good ground for rescinding even an executed contract. Glassell v. Thomas, 3 Leigh 125, citing the principal case to sustain the point. And in Leas v. Eidson, 9 Gratt. 278. Judge Monouiuc, in delivering the opinion of the court, said: “It is now well settled that a mutual mistake of the parties in a matter which is part of the essence of the contract and substance of the thing contracted for, will be corrected by a court of equity, and may be good ground for rescinding the contract or executing it on equitable terms of compensation, according to circumstances, even though the contract be in writing, and required to be so by the statute of frauds. 1 Story’s Eq, Jur., §§ 134, 144, 152, 162; 1 Munf. 330; 6 Munf, 283 ; 3 Rand. 504; 6 Hand. 552; 3 Leigh 113.”
      To the same effect, the principal case is cited in Butcher v. Peterson, 26 W. Va. 451; Fearon Lumber and Vener Co. v. Wilson, 51 W. Va. 30, 41 S. E. Rep. 139.
    
    
      
      Absent, the President.
    
   November 7.

JUDGE GREEN.

This is not a Bill for the specific execution of a parol contract only, but to remedy a mistake in the execution of such a contract, offering the Defendant the alternative to correct the mistake, by conveying the property really purchased, if he has a title to it, or t3 re-pay the money, if he has not. Here was a mutual mistake as to the very subject of the contract, and it is void, and should be rescinded, and the parties put in statu quo, by the repayment of the money, the vendor having no title to the property really sold. The Decree should be affirmed.

JUDGES CARR, COADTER and CA-BEEE concurred.  