On Motion for Rehearing.
On appellants’ motion for rehearing, our attention has been called to some inaccurate, *731though unimportant, statements in reciting the pleadings and findings in our original opinion, which, in the main, arose out of the fact that the record on appeal contains abandoned pleadings from which certain dates and blended averments were incorporated into the opinion which are not reflected in the record and subsequent pleadings. We have corrected our opinion to conform to the record as we interpret it.
Appellants challenge, among other things, our conclusion that the statements of appellant Eva K. Emery and George K. Holland, attorney, to Edgar Emery, in effect, that the verbal contract in question and the acts of the parties thereunder were invalid and unenforceable under our statutes of fraud which induced Edgar Emery to enter into a written contract and partially performing its terms by paying ten installments of $41 each, were not, as we determined, equally open to Edgar Emery and to the attorney Holland, and the statements were such as to vitiate the subsequent written agreement.
We do not wish to be understood that the statements were made as an artifice or fraud used by the relators to induce Edgar Emery to execute the written agreement, and we do not think it is necessary to so hold. The statements, as found by the jury, were the inducing cause of Edgar Emery to execute the written contract, and, if the relators construed the parol agreement and the acts of the parties thereunder as affording no valid and enforceable contract, under a misapprehension of the legal effect of the transaction, and Edgar Emery accepted the attorney’s misconception of the law, surrendered valuable rights detrimental to his interests in ignorance of his legal rights, and, on account thereof, executed the written contract to his hurt, the written contract under such circumstances should be set aside on the theory of mutual mistake. A mistake of law uttered by an attorney, who possesses a more superior knowledge of the law than the party acting thereunder, regardless of how unintentionally misleading it may have been made, should not be permitted by a court of equity to ripen into a gain by the party he represents.
We may well assume that the attorney was honest in his belief and without, any intention of misleading Edgar Emery, in stating to him that he had no legal rights arising out of the parol agreement, the basis of which Cid Emery, the other contracting party, purchased the real estate involved in this suit as trustee for Edgar Emery, acquired the legal title by deed in his own name, paid the consideration therefor with the expressed understanding that the beneficiary, Edgar Emery, would subsequently pay him back, placed Edgar Emery in possession of the premises, who, with the knowledge and consent of the trustee, made valuable and permanent improvements thereon, and paid practically the entire consideration to the trustee; and, furthermore, Edgar Emery, in ignorance of the legal scope of the transaction, in good faith, accepted the version placed on the transaction by the lawyer, a member of the Emery family, in whom he had the utmost confidence as to his honesty, judgment, and legal attainment, executed the subsequent written contract. Under the pleadings, reciting the facts surrounding its execution, which is supported by evidence and the findings of the jury, we think the judgment of the lower court, canceling the written contract, should be affirmed, basing our conclusion, aside from what has been said in our original opinion, under the doctrine of mutual mistake of the parties. The mistake with respect to Edgar Emery’s legal rights borders on a mistake of fact. Under such circumstances, equity will grant relief on account of the mistake, defensive or affirmative. Smith v. Jones (Tex. Civ. App.) 192 S. W. 795; Holt v. Gordon (Tex. Civ. App.) 176 S. W. 902; West v. West, 9 Tex. Civ. App. 475, 29 S. W. 242. In situations of this kind, our courts have cited with approval the following principle formulated in 2 Pomeroy’s Equity Jurisprudence (4th Ed.), par. 849:
"Whenever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relations, either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.”
We see no reason to change our conclusion reached in the original opinion. Appellants’ motion for rehearing is overruled.
Motion overruled.