This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
5. Orr v. Echols, 119 Ala. 340, 24 So. 357; Haussman v. Burn-ham, 59 Conn. 117, 21 Am. St. Rep. 74, 22 Atl. 1065; Parish v. Camplin, 139 Ind. 1, 37 N. E. 607; Bonhright v. Bonbrigtht. 123 Iowa, 305, 98 N. W. 784; Lear v. Prather, 89 Ky. 501, 12 S. W. 946; Wall v. Meilke, 89 Minn. 232, 94 N. W. 688; Sparks v. Pittman, 51 Miss. 511; Cor-rigan v. Tiernay, 100 Mo. 276. 13 S. W. 401; Pinkham v. Pink-ham, 60 Neb. 600, 83 N. W. 837; Green v. Morris & E. R.
Co., 12 N. J. Eq. 165; Kornegay v. Everett, 99 N. C. 30, 5 S. E. 30; Evants v. Strode's Adm'r, 11 Ohio 480, 38 Am. Dec. 741; Brock v. O'dell, 44 S. C. 22,
21 S. E. 976; State v. Lorenz,
22 Wash. 289, 60 Pac. 644; Biggs v. Bailey, 49 W. Va. 188, 33 S. E. 499; Whitmore v. Hay, 85 Wis. 240, 39 Am. St. Rep. 838, 55 N. W. 708. Contra. Fowler v. Black, 136 111. 363, 11 L. R. A. 670, 26 N. E. 596.
6. Hunt v. Rhodes, I Pet (U. S.) 1. 7 L. Ed. 27; Gordere v. Downing, 18 111. 492; Dever v. Dever, 19 Ky. L. Rep. 1988, 44 S. W. 986; Farley v. Bryant, 32 Me. 474; Durant v. Bacot, 13 N. J. Eq, 201; Lanning v. Carpenter, 48 N. Y. 408; Morton v. Morris, 27 Tex. Civ. App. 262, 66 S. W. 94; 2 Pomeroy, Eq. Jur. Sec. 843; Pollock, Contracts (Williston's Ed.) 576.
If the conveyance is purely voluntary, that is, if it represents a mere gift as distinguished from a sale, the donor is ordinarily entitled to a reformation on account of his own mistake, regardless of whether the mistake was shared in by the donee.7 On the other hand, if the conveyance is not based on a valuable, or at least a meritorious consideration, relief will not be given as against the donor while living,8 and, according to the weight of authority, it will not be given as against the heirs or devisees of a deceased donor by reason of the failure of the language of the conveyance to express the donor's probable intention.9
A contract for the sale of land, as any other contract, may be made under such a mistaken assumption on the part of both parties as to justify relief therefrom in equity at the suit of either of them, and the fact that a conveyance is made in pursuance of the contract
7. Jones v. Mcnealy, 139 Ala. 379, 35 So. 1022; Manfredo v. Manfredo, 191 Ala. 322, 68 So. 157, (mistakes as to legal effect) ; Mitchell v. Mitchell, 40 Ga. 11; Crockett v. Crockett, 73 Ga. 647; Day v. Day, 84 N. C. 408; Coale v. Merryman, 35 Md. 382; Mulock v. Mulock, 31 N. J. Eq. 594; Ferrell v. Ferrell, 53 W. Va. 515, 44 S. E. 187; 6 Pom. Eq. Jur. Sec. 679; 23 Harv. Law Rev. at p. 620, article by Edwin H. Abbott, Jr., Esq.
8. Lister v. Hodgson, L. R. 4 Eq. 30; Shears v. Westover, 110 Mich. 505, 68 N. W. 266;
Gwyer v. Spaulding, 33 Neb. 573, 50 N. W. 681.
9. Enos v. Stewart, 138 Cal. 112, 70 Pac. 1005; Powell v. Powell, 27 Ga. 36; Strayer v. Dickerson, 205 111. 257, 68 N. E. 767; Else v. Kennedy. 67 Iowa, 376, 25 N. W. 290; Comstock v. Cook, 135 Ind. 642, 35 N. E. 909; Miller v. Beardslee, 175 Mich. 414, 141 N. W. 566; Powell v. Morisey, 98 N. C. 42, 2 Am. St. Rep. 343, 6, 4 S. E. 185; Hout v. Hout, 20 Ohio St. 119; Willey v. Hodge, 104 Wis. 81, 76 Am. St. Rep. 852. 80 N. W. 75; Contra Mattingly v. Speak, 4 Bush would not ordinarily affect the right to relief. Whether there was a mistake justifying such relief is frequently a difficult question, but it is properly one of the law of contracts, and calls for discussion in a work on that subject rather than in one on the law of land.10 Whether, for instance, a mistaken supposition indulged in by both the parties as to the character or value of the land sold, or a misunderstanding between them as to the identity of the land, is ground for rescinding the conveyance and relieving the grantee from liability for the purchase money, is determined by the consideration whether it would have been ground for rescinding the contract of sale in pursuance of which the conveyance was made. So when the conveyance is not made in pursuance of a prior contract of sale, but the execution of the conveyance constitutes the proposal or acceptance of an agreement for the sale of the land, the right to a rescission of the conveyance on the ground of mistake is determinable by the consideration whether the mistake is such that it would have afforded relief from an executory contract of sale under like circumstances. It may happen, however, that a conveyance is executed, not by way of sale but by way of gift, and then the principles which apply in the case of a contract are not adapted to determine the rights of the parties. Whether, in such a case, that of a purely voluntary conveyance, the grantor will be relieved therefrom because, while it conforms with the actual intention of the grantor, such intention is itself based on a mistaken supposition as to the existence or non existence of a particular fact, is a question as to which there appears to be but little explicit authority. It would seem, however, that the donor will not be relieved by reason of
(Ky.) 316; Hues v. Morris, 63 Pa. 367; Mcmechan v. Warbur-ton  1 I. R. 435.
10. What appears to the writer the most satisfactory discussion of this matter is found in two articles by Roland R. Foulke, Esq. in 11 Columbia Law Rev. at pp. 197, 299.
That the grantor, at the time of his execution of the conveyance, mistakenly supposed it to be some other character of instrument, is sufficient to justify its cancellation, provided at least his mistake was not the result of negligence on his part.12 In such a case the instrument is not that which the grantor intended to deliver and it is consequently not his deed,13 though, as just indicated, negligence on his part may operate to prevent him from asserting that he did not intend to execute the character of instrument which he did execute.14 In determining the existence of negligence vel non for the purpose of determining whether one is bound by his execution of an instrument, a distinction is quite frequently asserted between the case of a grantor or obligor who is able to read, and that of one who is unable to read, a person of the latter description being entitled to relief if the instrument was not properly explained to him, provided at least he sought to have it explained,15 while a person of the former description is usually negligent if he fails to read it.16
11. See, to that effect, Kerr, Fraud & Mistake (4th ed.) 199; Pickslay v. Starr, 149 N. Y. 432, 32 L. R. A. 703, 52 Am. St. Rep. 740, 44 N. E. 163
12. Hammon, Contracts, Sec. 93; 4 Wigmore, Evidence, Sec. 2416.
13. Harriman, Contracts (2nd ed.), Sec. 80.
14. Pollock, Contracts (Willie-ton's Edition) 587.
15. Chicago, etc., R. Co. v. Belliwith, 83 Fed. 437, 28 C. C.
A. 358; Robinson v. Glass, 94 Ind. 211; Roach v. Karr, 18 Kan. 529; Leddy v. Barney, 139 Mass. 394, 2 N. E. 107; Hallenbeck v. Dewitt, 2 Johns. (N. Y.) 404; Providence Twp. v. Kesler, 67 N. C. 443; Weller's Appeal, 103 Pa. 594; Sheppard's Touchstone, 56.
16. Dawson v. Burrus, 73 Ala. Ill; Mchenry v. Day, 13 Iowa 445, 81 Am. Dec. 438; Van Sickles v. Town, 53 Iowa, 259; El- Fraud. The making of the conveyance by the grantor may have been induced by some fraudulent misrepresentation on the part of the grantee, or, which is in effect the same, the conveyance may have been made by way of compliance with a contract of sale which was induced by fraudulent misrepresentation. A vendor's right to repudiate a bargain obtained from him by fraud is not lost by the fact that he has executed a conveyance is accordance with the bargain, unless he did this with knowledge of the fraud, so as to justify a finding that he waived his rights in this regard. The execution of the conveyance is material only in so far as it renders it necessary for the vendor (grantor), in order to obtain complete relief, to effect a cancellation of the conveyance, and this he can do, ordinarily, only by recourse to a court of equity. The grantor may, moreover, be entitled to a cancellation of the conveyance by reason of a fraud connected, not with negotiations for the sale by him of the property, but with the execution of the conveyance, as when the grantee intentionally misstates to him the effect of the conveyance, or intentionally causes him to execute an instrument other than that which he intends to execute.17
- Duress. A conveyance may be set aside because executed by the grantor under duress. Duress, as recognized by the modern decisions consists, it has been said, in the actual or threatened unlawful exercise of power possessed, or believed to be possessed, by one party, over the person or property of another, from dridge v. Dexter & P. R. Co., 88 Me. 191, 33 Atl. 974; Jackson v. Croy, 12 Johns. (N. Y.) 427; Witthaus v. Schack, 57 How. Pr. 310; Powers v. Powers, 46 Ore. 479, 80 Pac. 1058; Picton v. Graham, 2 Desauss (S, C.) 592; Gibson v. Brown, (Tex. Civ. App.) 24 S. W. 574. See Harri-man, Contracts, Sec.Sec. 77, 78; Pollock, Contracts, (Williston's Ed.) 583. Compare cases cited. 5 A. & E. Ann. Cas. 215, 11 Id. 1164. 17. As to fraud as a ground for rescission or cancellation, see Pollock, Contracts (Williston's Ed.) 646-726; 2 Pomeroy, Equity, Sec. 872 et seq; Hammon, Contracts, Sec. 117 et seq.
Which the latter has no means of immediate relief other than by performing the required act.18 It ordinarily involves either threats of bodily injury, threats of imprisonment, or actual imprisonment, though by a number of cases threats of detention of or injury to goods have been regarded as sufficient for this purpose.19
- Undue influence. A conveyance may also be set aside on account of undue influence exerted upon the grantor. Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction, and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by courts of equity to be undue influence, and is a ground for setting aside the act procured by its employment. The fact that the parties stand in such a position towards one another, either by reason of relationship, professional employment, or otherwise, that the grantor is peculiarly susceptible to the exertion of influence by the grantee, is a consideration of primary importance in this connection, in cases where the transaction is in itself improvident or disadvantageous to the grantor. And the fact that the grantor is lacking in such mental vigor as to enable him to protect himself against imposition is a reason for the interposition of equity to protect him, although his mental weakness is not such as to justify him in being regarded as totally incapacitated.20
In some cases threats which are of such a character as to be insufficient to constitute duress as understood at common law, may constitute undue influence for the purpose of a court of equity, so as to justify a rescission of the conveyance. If a wife executes a conveyance by reason of her husband's threats of physical injury, the conveyance may be set aside as having been procured by duress, while if she executes it by reason of her husband's threats of abandonment, it is, it is said, a case of undue influence.21
18. Harriman, Contracts, Sec. 445.
19. The authorities are collected in Pollock, Contracts (Willis-ton's Ed.) 728-732; 1 Black, Rescission & Cancellation, ch. 9. And see editorial note 26 Harv.
Law Rev. 255.
20. Pollock, Contracts (7th Ed.) 600. See Hammon, Contracts, Sec. 138 et seq; 1 Black, Rescission & Cancellation, ch. 10.