DISSENTING OPINION OF
GALBRAITH, J.I cannot concur in the conclusion announced above by the majority of the court.
The Circuit Judge found that while the consideration of three thousand dollars recited in the second deed was less than *358the value of one-half the land conveyed still it was not so grossly inadequate as to justify the court in setting aside the deeds on that ground; that the deed was executed under a mutual mistake '-of fact; that each of the parties believed at the time that Thomas Mecalf owned only a one-half interest in the land and that that was all he intended to convey and all that John Ilidwell expected that the deed did convey to him.
To my mind these findings are fully supported by the evidence and the decree of the Circuit Judge should be affirmed.
The general doctrine is that a court of equity will grant its affirmative or defensive relief, as the circumstances may 'require, from the consequences of any material mistake of fact but will not relieve against a mistake of law and that a mistake relative to one’s private legal rights or interest is treated as a 'mistake of fact. Pomeroy’s Eq. Jur. Sections 842, 843, 849, 852; Maupin on Marketable Title to Real Estate, Sections 343, 244; 20 Am. & Eng. Ency. of law, 2nd Ed. 818, 819; Wilson v. Western N. C. Land Co., 77 N. C. 445, 452; Gillispie v. Moon, 2 Johns Ch. 585; Fly v. Brooks, 45 Ind. 50; Baker v. Massey, 50 Iowa 399; Haviland v. Willets, 141 N. Y. 35; Cooper v. Phibbs, L. R. 2 H. L., 149, 190.
The facts of this case bring it clearly within the rule as '.given by Pomeroy in Section 849, above cited, as follows: '^Whenever a person is ignorant or mistaken with respect to his -own antecedent and existing private legal rights, interests, •estates, duties, liabilities, or other relation, either of property, 'or contract, or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends, 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.”
Did the parties speculate in this transaction ? The first deed, 'that executed during the minority of Thomas Metcalf, may have been speculative. There were several contingencies that possibly were before the minds of the parties that might happen and change the interest of the grantor in the premises attempted to *359be conveyed. Tliere certainly was a cbance wbetber Thomas •would ratify the deed on reaching his majority. It will be observed that the defendant did not place a. high valuation on this deed since he only paid one hundred dollars for it. But the second deed stands upon an entirely different footing. At the time of its execution there was a definite understanding as to the interest the grantor claimed in the land. The consideration paid for this deed was three thousand dollars. This last fact alone proves to my mind that the defendant was satisfied that the grantor’s claim to one-half interest in the land was well founded.
It is found in the opinion of the court that the elements of chance, the speculative features that entered into the contract, were the rumors of “many claims adverse to Thomas” and “a good prospect of much litigation,” that both of the parties took into consideration the chances that some of these various claimants might establish a claim to an interest in the premises and thus reduce the grantor’s interest to less than one-half. All this might be admitted without agreeing to the conclusion announced. It does not appear that any of these rumored claims ever materialized in a suit or in the establishment of any recognized interest in the land. The subsequent event that did change the status of the interest of the grantor in the land, the event that was not considered or anticipated at the time of the execution of the deed, was the decision of this court filed in June, 1902, holding that Emma Metcalf was not “lawfully begotten” and had no interest in the land. This decision left Thomas Metcalf with the whole of the land and not one-half of it as both parties understood it to be at the time of the execution of the second deed. This decision was rendered more than one year subsequent to the date of the deed. Such a decision or construction of the will was not anticipated by either party when the deed was executed. It was not mentioned or thought of, was not considered doubtful or contingent, nor did the parties deal in reference to it. The attitude of the defendant in litigation then pending and his purchase of Emma’s supposed interest in the land for a valuable consideration prior to this decision *360proves conclusively that be did not anticipate the decision or speculate on its bearing on his deed and the interest conveyed thereby. He should not be permitted to take advantage of the decision to the great detriment of his grantor.
Under the law governing speculative contracts the rule is well settled that the element of chance, or the thing or event that is uncertain, must be known to the parties at the time of entering into the contract and the parties are considered to have calculated the chances of the uncertain event happening or not, and to have contracted in relation to it.
The rule is stated as follows: “It is also necessary that the uncertainty in respect of which the contract is made, should be understood and intended by both parties as attaching to the very same event or act which, being then unknown but anticipated, afterwards happens. If, therefore, the parties contract with reference to a certain contingent or doubtful event, and some other unknown fact, to which the parties had not referred, and in respect of which they had not contracted subsequently arises, materially altering their relations, and rendering an execution of their agreement inequitable, its enforcement may, under such circumstances, be denied.” Pomeroy, Contracts, Sec. 118, p. 229. See also Williard v. Taylor, 8 Wall 557.
Again the deed is unfair and unjust and ought to be reformed on this ground alone. The finding of the Circuit Judge that the three thousand dollars is not a fair consideration for one-half of the land is supported by the evidence. The lowest valuation placed on it by any of the witnesses at the hearing was ten thousand dollars. I am not willing, under the circumstances of this case, to confirm title in the defendant to an entire tract of land worth at least ten thousand dollars, and for which he only paid three thousand one hundred dollars, when both the grantor and grantee at the time of the execution of the deed intended that it should convey one-half only.
Again the method pursued by the defendant in obtaining these deeds does not appeal to my sense of justice and right. First we find him taking a deed from a minor for property worth many thousand dollars for a paltry consideration of one hun-*361died dollars. Then as soon as the minor arrives at legal majority the defendant hires two lawyers and the three of them set after the young man with the purpose of inducing him to execute a confirmatory deed conveying his inheritance to the defendant. The defendant knew that the young man was without business training or experience and that he could not resist the temptation to accept an offer of a large sum of money for his inheritance whether it was a fair consideration for it or not. Still it seems not to have occurred to the defendant to suggest to-Thomas Metcalf that he consult independent advice or some disinterested friend before closing the deal. Nor did these conditions seem to deter the defendant even from “driving a hard bargain” for the one-half interest which the grantor was then understood to own. Such a transaction has few of the elements-of a “deal at arm’s length” and ought not to be so classed.
I am convinced that the ends of justice would he subserved by granting affirmative relief against this most inequitable transaction, at least, to the extent of affirming the decree rendered by the Circuit Judge.