
    JOHN VAN RISWICK v. RICHARD L. WALLACH, CHARLES N. WALLACH, AND JAMES M. C. WALLACH.
    Cross-Bill in Equity. —
    No. 2990.
    If .a creditor take a conveyance of real estate containing covenants of warranty in payment of his indebtedness, and should the title to the land turn out to be defective, his only remedy is upon the covenants in the deed.
    STATEMENT 0E THE CASE.
    The Supreme Court of the United States decided in 2 Otto, 202, that no estate or interest remained in Charles L. Wallach after the confiscation sale of the premises in controversy, and that consequently his conveyance of the same, dated February 3,1866, to defendant John Van Riswick, after such confiscation, was of no force or effect, and constituted no defense to the right of the complainants to redeem the premises. The said Van Riswick then answered the original bill of complaint, and at the same time, by leave of the court, filed his cross-bill, representing that in addition to the amount due him upon the note and deed of trust which the original bill seeks to redeem, the said Charles S. Wallach was indebted to him, the said Van Riswick, at the time of his death, in the sum of $12,000; that an account of said indebtedness was stated between them after the return of said Charles S. Wallach to the District; that the said deed of February 3, 1866, which also included the western part of lot 14 in square 874, Was executed in satisfaction of said indebtedness, and that, not doubting the validity of said conveyance, he has made valuable improvements on said premises, and paid large sums of money for taxes, both general and special, levied thereon; that said indebtedness was contracted antecedently to the political and civil disability of the said Charles S. Wallach; and he prays that the true amount of said indebtedness may be ascertained, and that the same may be decreed to be a valid lien upon said lot, and the complainants decreed to pay the same before being permitted to redeem the property.
    A demurrer was interposed to the cross-bill, which was overruled at the general term; and the defendants had leave to answer and plead as they should be advised. A plea and answer were thereupon interposed. The plea was set down for hearing, and the issue thus formed was heard in the first instance at the general term. The part of the plea principally relied upon by the defendants reads as follows:
    “ These defendants say that on the 3d day of February, in the year of our Lord 1866, .in consideration of the whole of the said pretended other indebtedness, and of all real indebtedness, by the said Charles S. Wallach to the said John Van Biswick, then existing, the said Charles S. Wallach and his wife made and executed, signed, sealed, and to the said John Van Biswick delivered their deed of conveyance, whereby, for the expressed consideration of $11,000 in hand paid, they granted, bargained, sold, aliened, enfeoffed, released, and conveyed unto him the said lot of ground, land, and tenement in the original bill mentioned, and thereby sought to be redeemed, and also another lot of land and tenement, to wit, the western' part of lot numbered 14 in square numbered 874, having a front of forty feet and eight inches on Pennsylvania avenue, in the city of Washington, with covenants of general warranty and of further assurance, which deed of conveyance the said John Van Biswick accepted and received in full satisfaction of the identical indebtedness which is by the cross-bill pretended still to exist; and the said deed of conveyance was on the day of its making duly acknowledged by the grantor and his wife, and afterwards duly recorded; all which, by a copy of the same with the said original bill exhibited, and prayed to be taken as a part of this plea, will more fully appear.
    “ By virtue and effect of which deed of conveyance the said John Van Riswick became invested with title in fee to the said western part of lot numbered 14 in square numbered 874, and continued to be so until he aliened the same, since when his alienee holds the same by that title and no other.
    “ Wherefore these defendants do plead in law to so much of the said cross-bill as is hereinbefore particularly mentioned, the acceptance of the said deed of conveyance in part operative and effectual, and of the covenants therein contained, as having operated the entire extinguishment of the said indebtedness; and do pray the judgment of this honorable court whether they should be compelled to make any further answer unto so much of the said cross-bill as is hereinbefore pleaded to, and pray to be hence thereof dismissed with their costs.”
    It will be observed that the proposition of defendants to be established by the plea is, that the conveyance of Wallach to Van Riswick, set up therein, worked an extinguishment of the original debt, and that the only remedy of Van Riswick thereafter was upon the covenants of warranty contained in the deed. The case was heard at the April Term, 1878.
    
      Lambert & Darlington and Durant & Hornor, for complainant in cross-bill.
    The plea in this case belongs to the class denominated anomalous — supported by answer — which must be confined to negativing the equity of the bill. Not favored in equity. Must exclude intendments against the pleader. In case at bar neither plea nor answer denies the equity of the cross-bill, to wit, the mutual error or “ mistake all around,” against which relief is sought. (Tyler’s Mitford, 385; Story Eq. Pl., sec. 688; Piatt v. Oliver, 1 McL., 303; Dow v. Peters, 3 Edw., 140.)
    The answer in this case overrules the plea. .
    Equity relieves against the consequences of misapprehension or mistake of law when mutual, or “ all around,” as it is technically styled. (Story Eq. Jur., secs. 123, 134, 138; Adams Eq., marg. p. 189, 190; Hunt v. Rousmaniere, 8 Wheat., 211, 212, 216; Lansdowne v. Lansdowne, Moseley, 364; Bingham v. Bingham, 1 Ves. Sen., 127; Corking v. Pratt, Id., 400, debt declared to exist on cancellation of conveyance; Ramsden v. Hoylton, 2 Id., 364; Hitchcock v. Giddings, 4 Price Exch., 135, 304.)
    The apparent paradox that equity will grant relief against mistake of a clear, well-settled principle of law, and withhold it where the question was a doubtful one, applies only to cases where the doubt was present to the minds of the parties, and the agreement was a compromise based upon it. (Story Eq. Jur., sec. 121; Adams Eq., 189, n. 2; Story Eq. Jur., sec. 138.) The strictures upon the cases of Lansdowne v. Lansdowne and Bingham v. Bingham proceed upon this distinction. (Story Eq. Jur., 124, 125, and note 4.)
    There is no reported case in which relief against mistake of law has been denied, except where the mistake was either unilateral or made the basis of a compromise.
    
      Pike & Pike, for defendants in cross-bill.
    If a creditor accept a deed of land in payment, it is an ex-tinguishment of the debt; and if the title prove defective, he must look to his warrants. (Miller v. Young, 2 Cr. C. C., 53.)
    The following authorities cited: Preston v. Young, 4 Crauch, 239; Toussaint v. Martinant, 2 T. R., 105; Weaver v. Bentley, 1 N. Y. Term Rep., 45; Sugden, 175; Hunt v. Silk, 5 East, 449; Linden v. Hooper, Comp., 414; Noonan v. Lee, 2 Black, 500.)
   Cartter, Ch. J.,

delivered the opinion of the court orally, in substance as. follows:

This is a cross-bill filed by Mr. Van Riswick, praying that the indebtedness from Charles C. Wallach to said Van Riswick may be decreed a valid lien upon the property in ■ controversy, in the hands of the heirs at law of the said Wallach, aud that said indebtedness may be satisfied from the proceeds of a sale of said premises. The court have considered this proposition with great care, and have come to the conclusion that the plea interposed by the heirs is a complete bar to this relief. The alleged indebtedness was the consideration of the conveyance. The deed embraced the property now in controversy, and also another lot of land which Yan Riswick has since conveyed away.

The deed to Yan Riswick contained the usual covenants of warranty, and was received in full satisfaction of the amount due. We think the indebtedness was merged in that transaction, and that the relations which had previously subsisted between them were exchanged for those created by the covenants in the deed; and we think that his remedy is upon these covenants alone. Entertaining these view’s, we have come to the conclusion that the plea to the cross-bill must be allow’ed.  