CONCURRING OPINION OF
FREAR, C.J.I concur in the foregoing conclusion. There is no doubt that: courts of equity go very far in relieving from mistakes — some courts relieving from pure mistakes of law, some of them distinguishing between mistake and ignorance of law (see Fry., Spec. Per., 3rd ed., Sec. 765 and note, and most courts relieve from mistakes as to private rights, which, although often arising solely from mistakes of law, are of a mixed character and are. regarded practically as in the nature of mistakes of fact. In. the present case, the alleged mistake relied on may, perhaps, be.regarded as of the last mentioned kind; and the fact that the: plaintiff had only just arrived at the age of majority when he-executed the deed from which he asks relief, coupled with the,fact that the defendant will receive a very large value in comparison with the consideration he paid, if the transaction is allowed to stand, naturally appeals to a court of equity. But the; circumstances must be considered as they appeared at the time,; *356and not as they turned out afterwards, and if the parties really intended to take their chances and to make a speculative contract -equity cannot relieve. As said in Pom., Contr., Sec. 239: '“where parties have knowingly entered into a speculative contract, that is, one in which they intentionally speculated as to the result; and the facts upon which such agreement was founded, or the event of the agreement itself, turn out very different from what was expected, or anticipated, this error, miscalculation, or disappointment, although relating to matters of fact ■and not of law, is not such a mistake, within the meaning of the ■equitable doctrine, as entitles the disappointed party to any relief either by way of defeating or rescinding the contract; in ■such classes of agreements the parties are supposed to calculate the chances, and they certainly assume the risks.”
The mere fact that the deed in form purports to convey all the interests of the grantor would not of itself prevent relief, even though both parties understood precisely what the language was •and its legal effect, if they in fact contracted on the basis of a particular interest mistakenly believed by both ¡parties, or by one in consequence of inequitable conduct of the other, to be the interest actually conveyed. 2 Pom. Eq., Sec. 849. But was such the case here? There is not a particle of doubt that the contract was speculative up to a one-half interest at least. Both parties recognized that it might prove to be less. If it did so prove, the grantee of course would not be entitled to relief on the theory that both thought that the interest would prove to be one-half. Theoretically there is no reason why the contract -could not be speculative up to a one-half interest, and made by mistake to cover the whole or more than one-half, so as to justify relief as to all actually conveyed above one-half through mutual mistake. There is also much reason to believe that both parties in this instance believed at the time that the interest of the grantor would not turn out to be more than a one-half interest. But did not they take their chances as to 'all over as well as to all under one-half ? On all the evidence I am inclined to think they did, and the burden was on the plaintiff to show not merely that -they may not have done this, but clearly that they did not. *357Pom., Contr., Sec. 238. Tbe question is not so much, what each thought within himself, as what their mutual understanding was; not so much what each calculated in reasoning upon the probable result, as what it was with reference to which they contracted. They did not discuss the extent of the vendor’s interest. The vendor, indeed, remarked at one point in the negotiations that he thought his interest was one-half but that he did not know, but he was told that the deed was drawn so as tO' convey all his interest whatever it was. It is true, parties may contract with reference to a subject matter as affected by some uncertainties and act through mistake in respect to other particulars, so as to present a case for relief, but that was not the case here. They contracted with reference to all uncertainties as to the extent of the vendor’s interest, and in such case it is immaterial whether they had in mind each uncertainty specifically or not. They said nothing as to uncertainties which might reduce the supposed interest to less than a one-half interest as well as nothing as to those that might increase it to more than that amount. The facts were equally known to both parties, so far as appears, and both contracted with reference to the uncertainties, whatever they were, as to the extent of the grantor’s interest, recognizing that there were uncertainties though perhaps not knowing particularly all of them. There is no satisfactory evidence as to what elements each actually took into consideration in estimating the probable result, — assuming that their unexpressed thoughts could affect the result in law. In most eases of this kind in which relief is given, the mistake clearly appears from the language used or from external facts, as where there is an attempted purchase through mistake of what the vendee already owns or of what is non-existent or what turns out. to be a different subject, &c. See Pollock, Contr., 418 et seq.