should be ignorant of it at the time(b).

Suppose I sell

an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact, am I to be allowed to receive 5,000l. and interest, because the conveyance is executed, and a bond given for that sum as the purchase-money, when, in point of fact, I had not an inch of the land so sold to sell (c) ?" Both these cases, when they arise, will, it is apprehended, deserve (*)great consideration before they are decided in the purchaser's favor. The decision must be the same, whether the money is actually paid or only secured(d)(I)(162).

(b) But see 2 Cro. 196; 2 Ld. Raym. 1118; 1 T. Rep. 755; 2 Freem. 106; and post, ch. 9, s. 6.

(c) See ch. 5, s. 2, post.

(d) See post, ch. 9, s. 6.

(I) In a late case before Lord Eldon, his Lordship expressed considerable doubt upon the doctrines in the case in the Exchequer.

(162) The principle asserted in the text, seems to rest upon the ground that the maxim ignorantia juris non excusat, is applicable only in the administration of criminal law. In Lansdown v. Lansdown, cited ut supra, the Lord Chancellor says, "That Maxim of law, ignorantia juris non excusat, was in regard to the public, that ignorance cannot be pleaded in excuse of crimes, but did not hold in civil cases." See Levy v. Bank U. S. 1 Binn. 27, 37. acc. ut semb. But a contrary doctrine was held by Chancellor KENT in Lyon v. Richmond, 2 Johns. Ch. Rep. 51, 60. "The courts" he says, "do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of the law. Every man is to be charged at his peril, with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind." See also, Shotwell v. Murray, 1 Johns. Ch. Rep. 516. Storrs v. Barker, 6 Johns. Ch. Rep. 166.

In Haven v. Foster, 9 Pick 112, where the plaintiff as administrator on an estate paid over to the defendant by mistake of the laws of descent of New York the money sought to be recovered back in this action; held, that he was entitled to recover. The lex loci rei sitae must govern the descent of real estate. The parties knew that the intestate died seized of lands in New York. The distribution was governed by

Where a policy of assurance on a life was sold by auction, and the particulars did not state that the seller had only a redeemable interest in the life assured, and the interest was afterwards redeemed, it was held that after the purchase was completed the purchaser could not recover damages for the fraud, as it was proved that the practice of the office was to pay such policies, although of course there was no legal right to recover under the policy(e).

If a lease be granted with power to the lessee to cut and sell the timber, and the lessee is required when and so often as he intends to sell the timber, or any part thereof, to give notice to the lessor to whom the pre-emption was given; the lessee having a bona fide intention to cut down all the timber, may give a general notice to the lessor, and if the lessor decline to purchase the timber, the lessee may cut it down at intervals, and need not repeat the notice(f).

A bona fide purchase of an interest will not be converted into a loan, on account of a power to re-purchase being given to the seller, although at an advanced price;

(e) Barber v. Morris, 2 Mood. & Malk. 62.

(f) Goodtitle v. Saville, 16 East, 87. See Doe v. Abel, 2 Mau. & Selw. 541.

the laws of that state. The statute of New York is a fact, the ignorance of which may be ground of repetition. The defendant received a part of the consideration of these lands by mistake in a matter of factthe law of New York. The estate in New York was under mortgage ; and the mortgage was satisfied from the estate itself. The heirs agreed to pay off the mortgage; and the plaintiff supposing he owned but a quarter, when he owned half made the agreement in respect to the distribution of the proceeds of these lands. The agreement was founded in mistake, but it has been executed, as the parties cannot be restored to the situation they were in when it was made, and as the effect of annulling to one would work injustice to another, we can see no good reason why both should not be bound by it.

but, if the purchaser, instead of taking the risk of the subject of the contract (e. g. an annuity) on himself, take a security for repayment of the principal, that will vitiate the transaction, and render it a mere mortgage security (g)(163).

(*)If a power to re-purchase be given upon a condition, for example, that rent be in the mean time regularly paid, the right cannot be enforced unless the condition has been complied with, for it is not a stipulation for penalty or forfeiture but a privilege conferred (h)(164).

(g) Verner v. Winstanley, 2 Scho. & Lef. 393. See Sevier v. Greenway, 19 Ves. jun. 413.

(h) Davis v. Thomas, 1 Russ. & Myl. 506.

(163) See Jackson v. Green, 4 Johns. Rep. 187. Townsend, 2 Mass. Rep. 493.

Erskine v.

(164) The principle of this decision was recognized in the late case of Robinson v. Cropsey and others, 2 Edward's V. Ch. R. 138, where the question was as to the effect of an agreement. It appeared that one Sharp and the complainant had joined in building a house upon two lots of land. Sharp and wife executed a conveyance of one undivided moiety of said lots; and also of a moiety of two other lots. A consideration was expressed, but not then paid. Subsequently, however, the parties agreed under their hands and seals thus: Sharp was to convey to the complainant the whole of said lots with four other lots, free of incumbrance, except a mortgage, which the latter was to pay :-in consideration whereof the complainant was to cancel an account current; and also certain mortgages he held.

Sharp agreed also to lease

The agreement also gave house and lands within one

certain lots for 19 years at a stipulated rent. to Sharp" the privilege of redeeming said year for a sum therein mentioned. In pursuance of this agreement, Sharp executed a deed conveying the other four lots; and the complainant had been in possession since that time. The question for the court was whether this was a conditional sale or a mere mortgage transaction. The V. Chan. decreed that the defendants, as the representatives of Sharp, had no right to redeem or re-purchase under the the agreement. The grounds of this decision were that the relation of debtor and creditor did not remain by the agreement; but the debt forming the consideration of the conveyance was extinguished by the agreement; and the grantor retained the privilege of refunding the money if he should choose to do it. The enquiry, says Chief J. Mar

Where a power is given by an Act of Parliament to purchase the estate of a third person for a public purpose, with the usual provisions for ascertaining its value, if the terms offered are not accepted; the party empowered to purchase, if he give a regular notice to purchase, cannot withdraw from it, but will be compelled to take the estate(i).

It may here be observed, that the grant of the office of a steward of a manor for life is not revoked by a subsequent sale of the manor, but is binding on the purchaser ; although, as lord, he will be entitled to the custody of the court-rolls. In purchasing a manor, therefore, the instrument by which the steward was appointed should be called for. This is a precaution which has never been attended to.(165).

(i) The King v. Hungerford Market Company, 1 Nev. & Mann.

112.

shall in Conway's executors v. Alexander, 7 Cranch, 218. must be, whether the contract, in the specific case, is a security for the repayment of money or an actual sale. If a mortgage is intended, the mortgagee must have a remedy against the person of the debtor: if this remedy really exists, its not being reserved in terms will not affect the case; but the remedy must exist, in order to justify a construction which overrules the express words of the instrument." When the mortgages, &c. were cancelled, they were extinguished; and by the agreement went to pay the consideration money.

(165) Parsons Ch. J. "If a grantor deliver any writing as his deed to a third person, to be delivered over by him to the grantee on some future event, it is the grantor's deed presently, and the third person is a trustee of it for the grantee. And if the grantee obtain the writing from the trustee before the event happen, it is the deed of the grantor, and he cannot avoid it by the plea of non est factum, whether generally or specially pleaded. But if the grantor make a writing and seal it, and deliver it to a third person, as his writing or escrow, to be by him delivered to the grantee, upon some future event, as his the grantor's deed; and it be delivered to the grantee accordingly, it is not the grantor's deed until the second delivery. And if the grantee obtain the possession of it before the event happen, yet it is not the grantor's deed, and he may avoid it by pleading non est factum.

are void.

But if the deeds are delivered to a person, not as the deeds, but as the writings of the grantor, we must not thence conclude they Although generally an escrow takes its effect from the second delivery, yet there are excepted cases, in which it takes effect, and is considered the deed of the maker, from the first delivery. The exception is founded on necessity, ut res valeat. If a feme sole seal a writing, and deliver it as an escrow, to be delivered over on condition, and she afterwards marry, and the writing be then delivered over on performance of the condition, it shall be her deed from the first delivery; otherwise her marriage would defeat it. A. delivers a deed, as an escrow, to J. S. to deliver on condition performed, before which it becomes non compos mentis: the condition is then performed, and the deed delivered over; it is good, for it shall be A's. deed from the first delivery. Brook's Reading on the st. of limitations, p. 150. Another exception is in 3 Co. 35 b. 36 a. Lessor makes a lease by deed, and delivers it as an escrow, to be delivered over on condition performed, before which lessor dies, and after it is delivered over on condition performed: the lease shall be the deed of the lessor from the first delivery. There is also a strong exception in 5 Co. 85. If a man deliver a bond as an escrow, to be delivered on condition performed, before which the obligor or obligee dies, and the condition is after performed: here there could be no second delivery, yet is it the deed of the obligor from the first delivery, although it was only inchoate but it shall be deemed consummate by the performance of the condition. Therefore in Wheelwright v. Wheelwright, 2 Mass. 447, where the statute authorized any person of full age seized in fee tail of any lauds by deed duly executed before two subscribing witnesses, acknowledged and registered as therein provided, for a good and valuable consideration bona fide to convey such lands or any part thereof in fee simple to any person capable of taking and holding such estate; and such deed, so made, executed, acknowledged and registered shall bar all estates-tail in such lands, and all remainders and reversions expectant thereon. In this case the deeds were executed and delivered to one Wells, not as the deeds of the grantor, but as his writings or escrows, to be delivered as his deeds by Wells to the grantee on his, the grantor's death. The Court held, that the deeds must take their effect, and be considered as the deeds of the grantor, from the first delivery, the grantor being dead at the second delivery.

:

What the nature of the delivery was, whether absolute or conditional, and the intentions of the parties were, are questions of fact for the jury, to be determined by the evidence. Hatch v. Hatch, 9 Mass. 307. In this case, the father about four years before his death, signed, sealed and