delivered the following dissenting opinion:
I concur with a majority of the Court in overruling the decision in this cause pronounced by the Chancellor in the Court below, but dissent from so much of the order as directs the case to be sent back for further proceedings.
It is admitted by the defendant below that he did make a misrepresentation in regard to his ownership of the land *404in controversy, at the time of and during the treaty for the sale to the complainants ; but he expressly states in his answer that this misrepresentation was the result of an innocent mistake, and there is no charge or pretench in the bill that he meditated any fraud in the transaction. “ Mistake” is one of the well defined and admitted grounds of Equity jurisdiction, but it is not every mistake of fact that will induce the equitable interference of the Court. The doctrine upon this subject is so lucidly stated by Story, in his admirable Treatise on Equity Jurisprudence, that it seems impossible to mistake it. He says : “ The rule as to ignorance or mistake of facts entitling the party to relief, has this important qualification, that the fact must he material to the act or contract; that is, that it must be essential to its character, and an efficient cause of its concoction. Eor though there may be an accidental ignorance or mistake of a fact, yet if the act or contract is not materially affected by it, the party claiming relief will be denied it.” Story Eq. Ju., §141, 5.
Applying the rule to the facts in this case, the question arises, what was the fact in reference to which the mistake occurred ? The allegation and admission is that Ladd represented himself to be the owner of the eighth of land in controversy, when in fact and in truth the title was in the government. Was the mere fact as to who held the title at the time of the treaty, a matter “ material” to or the “efficient cause” of the contract? It would seem not, for the purchasers took good care to provide against a failure of title, by taking the covenant of the vendor to perfect the same, and he is now able and ready to comply with that covenant. Wherein, then, consists the “ materiality” of the mistake ? I am at a loss to perceive. It certainly did not affect the value of the purchase, for it is strongly intimated in the bill, if not expressed in so ma*405ny words, that the particular eighth of land in controversy was wholly valueless. Now, upon the subject of “ materiality,” I take the rule of equity to be this : that no misrepresentation or mistake of fact will be deemed “ mateai” which does not affect the value of the -thing contracted ,-for. The representation that he had the title to this particular eighth, was doubtless a potent argument in the mouth of Ladd why he would not consent to separate it from the other three; but as a matter of argument merely, I do not think it comes up to the rule. At most, it can only be received as “ damnum absque injuria” and equity never interposes except to remedy or prevent injury. Story Eq. Jur., §151; 2 Bibb, 474, Crittenden vs. Craig.
But the rule of equity proceeds further, and sometimes refuses its interference even where the mistake is of a material fact. This occurs when there has been a strict observance of perfect good faith between the parties, and the mistake complained of is the mistake of all. Story Eq. Ju., § 147; Fonb. Eq., Chap. 2, §7, (note v.)
' “ Where the mistake is not the occasion of the promise, the act is valid, there being nothing wanting of the true assent on all sides.” 2 Pow. on Con., 263.
I can discover nothing in the facts of this case which calls for the interference of a Court of Equity. A vendor, supposing himself to be the owner of a tract of land, contracts to sell the same, and executes a covenant to perfect the title. He afterwards discovers that he was mistaken as to his ownership, and that the title is in fact in another. He forthwith purchases the title, and thus puts himself in a position to comply with his covenant, and it is now claimed that instead of thus acting, he ought to have communicated the fact to the vendees, and left it to their option to have rescinded the contract. I do not think he was bound by any principle of equity or good morals voluntarily to *406place himself within the power and consequently at the mercy of the vendees, who held his covenant for title, and might, upon a demand or refusal, have proceeded against him for damages, in a Court of Law, or for a specific performance in a Court of Equity. In cases where there appears no meditated fraud, equity is as observant of the mutuality of rights in the enforcement of contracts, as it is of the mutuality of assent in their concoction, and a very simple test of the principle involved in this controversy is this : Might the vendor have been compelled to respond in damages for a non-compliance with his covenant for title ? Evidently he might. If, then, he might have been thus compelled, I am at a loss to discover the principle upon which it can be ruled to be iniquitous in him to place himself in a position to make good his legal obligation. The vendees are now tendered all they contracted for — the title — and with that I think they ought to be satisfied. .
I am the more decided in my dissent in this cause because of the apprehension that by making the Courts of Equity Jurisdiction too easily accessible, parties maybe induced to abate that vigilance and caution in the concoction of their contracts, which affords the'surest guarantee against litigation. Whilst Courts of equity should be ever open to re\>dk& fraud in all its aspects, they should nevertheless be careful not to encourage negligence by a too ready interference in the business transactions of individuals. Pothier has expounded this subject with his usual force and sterling sense, and given to. us a well defined line of demarkation. “ As a matter of conscience,” says he, “ any deviation from the most exact and scrupulous sincerity, is repugnant to the good faith that ought to prevail in contracts. But in civil tribunals, a person cannot be allowed to complain of trifling deviations from good faith in the party with *407whom he has contracted. Nothing but what is plainly injurious to good faith ought to be there considered as a fraud sufficient to impeach a contract.” With how much greater force is this doctrine applicable to a mere mistake of fact, unaccompanied by any pretence of fraud. I am of opinion that the facts of this case do not afford sufficient ground for the interference of equity, and therefore think that the bill ought to have been dismissed.