#### TODD *v.*BEATTY.

Sale of dower — admeasurement—contract with minors — fraud—mistake of the law — disaffirmance by adults.

Where a man contracts with a widow for her dower in land, enters into possession, and after-wards has it admeasured to him, she having set up no claim, he will not be permitted to set aside the release to him, because the widow conveyed before the dower was admeasured.

The utmost he can claim in such a case, is to have a perfect release after the admeasurement.

Where a contracting party has full knowledge of the facts upon which he contracts and of the situation of the parties, his mistake of the law will not vacate the contract.

*461Where an adult deals with minors, and when they attain to majority he induces them to dig-•affirm their contract, to enable him to avail himself of the disaffirmance against another, expecting they will renew the contract, he has been guilty of a fiaud and will not be aided in chancery.

If one contract with a widow for her dower and with heirs for their interest in the fee of land, the disaffirmance by the heir does not affect the contract for dower which is not connected with it.

Where notes are given for a dower interest, and a defective release is taken, the notes are not therefore without consideration. All such purchaser in justice can ask is to have the lease construed into a contract to convey, and to have a perfect release decreed.

In Chancery. The complainant alleges that he contracted with the defendant for her dower right in a quarter section of land, gave his notes for the purchase-money, and took from her a deed of conveyance, for all her right of dower, to him and his heirs: That at the same time he contracted with her two minor children for the fee, one of whom has since attained to majority and refuses to comply with the contract: That he was induced to buy the dower under the assurance she made that the children would sell, and he would get the whole fee; but now finds that as her dower was not assigned, she could not convey to him, and he took nothing by the deed. He prays an injunction against the notes, and a recision of the contract.

The defendant’s answer admits the contract, the deed and notes; avers that the complainant purchased with full knowledge the dower had not been assigned, at his own instance, and has since been in possession thereof, and had the dower assigned. The defendant supposed, and is still advised, that her deed conveyed the dower, and she has set up no claim to it since nor has any one else.

*Cowen*and Hubbard, for the complainant,

contended — -

1. That dower, before assignment, is not transferable by deed: that an executed contract for the sale of dower is void, if made to a stranger; and so the notes given for the purchase are without consideration, and will be enjoined. 2 *Bl. Com.*129; 2 *Jac. L. Die.*322; 22 *O. L.*135; *Swift’s Dig.*85; *Mass. Dig.*239; 2 *Kent’s C.*367; *Powell on Con.*152 *to*156; 1 *Pr. Wins.*576; 1 *Swift’s*Digest, 206; *Cro. Eliz.*149, 847; 1 *Brig. Dig.*149; 4 *K. C.*60.

2. If the complainant at the making of the contract, mistook the law as to the conveyance, he is entitled to relief, though the purchase was not induced by fraud. 2 *Br. C.*150; 5 *John. R.*499.

Shannon, contra,

cited 1 *O. R.*45; 4 *Kent,*6, 36, 60, 254; *Pow. on Con.*163,4.

Wright, J.

On the 9th November, 1820, these parties contracted together, for the sale, by the defendant to the complainant, of her dower interest in a quarter section of land; notes were given by the complainant for the purchase-money, and the defendant executed to *462him a deed of release for her dower. At the same time the complainant contracted with the two minor heirs to buy of them two-fifths, undivided, of the fee of the same land, to pay them when they attained to majority, and conveyed to him. These contracts were made by the complainant with full knowledge of the situation of the parties, and of the fact, that the dower had not been assigned or set off to the widow in form. At a subsequent period the proof is that the contract for the two-fifths was rescinded by the parties, at the instance of the complainant, and the dower was admeasured to him. No other conveyance has ever been asked of the defendant. The proof leaves it uncertain who has had the possession since the dower was admeasured, but there is no evidence, or circumstance to induce the belief, that the defendant has ever interposed the slightest obstacle to the full enjoyment of the premises by the complainant. A partition was made between the complainant and Long, who held the other three-fifths, by which each had his proportion in severalty. This was about the time of the rescisión of the contract with the minor heirs. The complainant asks to have this conveyance annulled, and the collection of the notes given for the purchase enjoined. 1. On account of the mistake under which the contract was made. 2. The want of consideration for the notes. 3. Upon an alleged agreement to cancel the notes in case the complainant failed to get a title for the two-fifths.

1. The proof clearly shows that the complainant was under no mistake in the facts of the case, in the situation of the contending parties, or of the land. As to all these matters the parties were well informed. The mistake, if any, was one of law, in supposing the *release*operated to convey the dower estate before its admeasurement to the dowress. In case the complainant had obtained the fee of the two-fifths, and the dower was afterwards admeasured, I think the release would have operated, and enured to his benefit. The failure in obtaining title to the two-fifths appears on the proof, to be owing, first, to the fact, that the complainant solicited the minor children who had contracted with him, to disaffirm and destroy the contract, in order to enable him to set aside the partition with Long, in which he thought Long had got the better of him. The subsequent refusal of these heirs to re-contract, is not a matter that can in any way affect the contract for the dower. If it resulted from any influence other than their own reflections, it was the influence of the complainant himself. He taught them to disaffirm,, to enable him to operate upon another, and then expected they would make a new contract. It is well enough, that having sowed the *463wind, he should reap the whirlwind. The transaction, taken in all its aspects as connected with the contract, exhibits the complainant in no favorable light to obtain relief on account of *mistake,*at the hands of a chancellor.

2. The alleged agreement of the parties to cancel the agreement, if the minor heirs disaffirmed their contract for the two-fifths, is not only unsupported by the proof, but is against the proof. The agreement was, in fact, disaffirmed and cancelled at the express invitation of the complainant. If it be said that was only done to enable him to violate his agreement for partition with ' Long, who owned the other three-fifths, then it was fraudulent, and he was the instigator of the fraud. He comes here with foul hands, without right to relief. If, however, the refusal by the heirs was not at his instance, but was at the instance of the defendant, it is in no way connected with her contract for the dower, and cannot vitiate it. But it appeal’s to us clear, that the contract with the heirs was the complainant’s own, without connection with, or the responsibility of, the defendant. He was no way deceived by the defendant. He took upon himself the chance of obtaining the confirmation of the heirs when of age. The defendant, on the advice of the scrivener, Tallman, actually *refused*to go security for the children, when the writings were executed, and did not sign them. Then the complainant took the contracts of the minors, saying he had no security and never expected any.

3. The want of consideration for the notes is not made out. The contrary is the fact. The notes were given for the dower, and the contract supposed to be completed at the time, by the release. Say it is defective as a conveyance; what does justice require? That the defects shall be supplied — that the complainant shall have what the defendant contracted to give him, and no more. Having purchased with his eyes open, all he can ask is to have the release construed to be a contract and a conveyance now made, upon his paying what he owes. That she expresses her willingness to give.

By agreement, the parties then take a decree for a conveyance of the dower in sixty days, without costs.