One of the grounds on which the bill was dismissed by the chancellor was, that it contained no allegation that the complainants had obtained a conveyance, with covenants of warranty, from Hill ; but on looking into the bill, we find that it does contain such an allegation. The charge, however, is, that the deed was made to the complainants, and the exhibit and proof show that it was made to Neal alone; but we do not regard this as a material variance: it is a mere clerical error in drawing the bill; and as it is apparent that the deed set out as an exhibit is the conveyance referred to, the defendants could not have been taken by surprise, and were as fully enabled to prepare their defence as if it had been charged to have been made to Neal alone.'— Story’s Eq. PI. §257.
The bill is certainly very loosely drawn, and contains a great deal of impertinent matter, which might have been struck out on a reference. It charges, however, with suffi*558cient distinctness, that the complainants, Lanier and Neal, purchased a tract of land, at a sale made by Hill, as the administrator with the will annexed of one Webb; that they executed their notes, with the complainant Powell as their surety, and subsequently received a deed, with the usual covenants of warranty, from Hill; that Hill, in making the sale, did not act under any order of court, but represented that he had authority to sell under the will, when he had no such authority ; that the purchasers believed such representation, and were influenced in making their purchase by it, and received the deed under the belief that it conveyed the title.— The prayer being for general relief, these allegations, if proved, give the party a right to any relief which the chancellor could properly grant, without reference to the superfluous and unnecessary matters with which the bill is incumbered. It is true, that where the sale has been executed by a conveyance, chancery will not rescind the contract, on account of a defect in the title, 'in a case free from fraud or misrepresentation, but will leave the party to his remedy at law (Woodruff v. Bunce, 9 Paige 443 ; Cullum v. The Bank, 4 Ala. 21) ; but where a material fact is misrepresented, and the other party believes and acts upon it, it is immaterial, in a court of equity, whether the party making the statement knew it to be false. Hardin v. Randall, 15 Maine 332 ; Champlin v. Layton, 6 Paige 189 ; Rosevelt v. Fulton, 2 Cowen 129 ; 1 Story’s Eq. §193, and cases there cited. We are not prepared to say, that, in an action at law for a deceit,'something more than a mistake must not be proved, in order to entitle the plaintiff to recover ; but in equity, mistake is as good ground of relief, as fraud ; and certainly, if the misrepresentation is in relation to a material matter, and the party is misled by it, although it may be innocent, it operates as injuriously as if it had been by design; and upon the clearest principles of morality, a court of equity should not only refuse to enforce, but should rescind a contract made under such circumstances.
It is true, that in this bill the misrepresentation is charged to have been fraudulently made, and the evidence probably does not go further than to show that it was a mistake on the part of Hill as to his authority to sell ; but we do not think that makes any difference. The misrepresentation is charged *559with particularity, and it is as clearly proved ; and in this respect the probata and allegata correspond. The intent with which it was made is entirely immaterial, so that the allegation of fraud is superfluous. As the evidence as to the misrepresentation is full, and as it is equally clear the purchasers were deceived by it, and it went to the most material part of the contract, they have thus far made a case which would entitle them to a rescission of the contract; and as the purchase money, had it been paid, would have to be refunded, if not paid the collection of it will be enjoined, without regard to the solvency of the vendor ; and the same rule obtains against the assignee of the vendor, unless the paper was mercantile, and passed in the course of trade to a bona fide holder.—Andrews v. McCoy, 8 Ala. 920 ; Greggs v. Woodruff, 14 Ala. 1.
In the present case, however, the complainant Lanier promised Culberson to pay the note sued on, if he traded for it, and he (Lanier) obtained Mrs. Webb’s relinquishment of dower. The evidence shows that the relinquishment of dower was obtained ; and Culberson having bought the note on the strength of Lanier’s promise, the latter has no ground of relief against him.—Clements v. Loggins, 2 Ala. R. 514. But this circumstance does not deprive him of the right, which he has in connection with his co-plaintiff Neal, to rescind the contract of sale, if he insists upon it, although, by force of the promise he has made, he would be liable to pay one of the notes given for the purchase: all the complainants would be entitled to a rescission, and Neal and Powell to an injunction against the defendant Culberson, restraining him from the collection of the note sued on, which last relief Lanier would not be entitled to, on grounds entirely personal and independent of the contract of sale.
Let the decree be reversed, and the cause remanded, that a decree may be rendered in conformity with this opinion, the appellees paying the costsjof this court.
ChiltoN, C. J., not sitting.