Action by tbe appellant against tbe appellee to recover possession of certain land.
Yerdict and judgment for tbe defendant.
Tbe facts involved in tbe case are substantially as follow: On tbe 16th of February, 1844, tbe defendant, Holdridge, purchased tbe land in controversy of Sumner and Clark, who then owned it, at tbe price of 480 dollars, a part of which seems to have been paid down; tbe residue, 400 dollars, was to be paid in four equal annual payments. Sumner and Clark executed to Holdridge a title-bond, conditioned for tbe conveyance of tbe land upon tbe payment of tbe purchase-money. On tbe 28th of March, 1849, Holdridge assigned tbe *206title-bond to the plaintiff, Sowle, in these words, viz: “I hereby assign my right and title to the within-described lands and the crops, for the consideration of 500 dollars, to Francis Sowle. Dudley Holdridge.”
Sowle afterwards paid up the residue of the purchase-money, and received from Sumner and Clark a conveyance of the land.
In 1855, Sowle brought an action in the 'Steuben Circuit Court against Holdridge to recover possession of the land; and Holdridge set up, as a defence to the action, that the assignment of the title-bond was not intended to be absolute, but only to secure Soiole for what he might pay to the vendors of the land, with the interest thereon, to be repaid to him by Holdridge, within a reasonable time; and that, upon such repayment, Sowle was to relinquish his .claim to the land; that he had offered to pay Sowle the full amount which he had advanced with the interest thereon, viz., the sum of 475 dollars, which he then brought into court to be paid to Sowle. In this defence Holdridge succeeded.
It was adjudged by the Court “ that the said defendant is the owner of all the equitable and beneficial title and interest in and to said land; that the said Sowle holds the legal title to said land only in trust for the said defendant. It was further directed that said Sowle execute to said defendant a quitclaim deed for said land within thirty days, and that said Holdridge hold said land free and discharged from all title or claim of said Sowle thereto, by reason of said deed from Sumner and Clark to him, and that said Sowle receive the said sum of 475 dollars from the Clerk of this Court, now on deposit in said Clerk’s office, for said Sowle.”
This judgment was afterwards set aside, and a new trial granted, under the provisions of the statute authorizing new trials without cause in such cases.
*207TJpon the granting of the new trial, the cause was taken, on application for a change of venue, to the St. Joseph Circuit Court. In the latter court the cause was dismissed, the parties entering into the following agreement in relation to the controversy, viz:
“Agreement made this 19th day of October, 1858, between Francis Sowle and Dudley Holdridge, as follows, to wit: Soiole agrees to convey the S. E. quarter, sec. 28, T’p 37, N. R. 14, E., in Steuben county, Indiana, (the land in controversy,) to Dudley Holdridge, for the consideration of 900 dollars, making a good and sufficient deed therefor; and the said Holdridge agrees to pay therefor the sum of 900 dollars, as follows, to wit: Said Holdridge is to obtain and pay down to Sowle the amount tendered and paid into court in the case of Soiole against Holdridge, now pending in the St. Joseph Circuit Court, Indiana, and the balance in payments — one-third in one year from this date, one-third in two years from this date, and the balance in three years from this date, with use, and waiving valuation laws of Indiana, and execute a mortgage on the west half of said quarter for the payment of the same, and the performance of these stipulations. And it is agreed that the parties shall pay their witnesses respectively, and the balance of the costs obtained, each to pay one-half in the suit aforesaid; and Holdridge is to pay tax of 1858 on the land. The performance of the above stipulations respectively to be done on the third of November next; and for this performance the parties bind themselves in the sum of 1000 dollars. Witness our hands and seals the day and year above written. “Francis Sowle, [seal.]
“Dudley Holdridge, [seal.]”
Before the bringing of this suit, Sowle executed a deed for the land, and tendered it to Holdridge, who failed to make the specified payment or fulfill the contract on his part.
*208It is evident that the plaintiff should have recovered, (if the above-recited contract is binding,) unless the defendant put himself in a position to enforce specific performance of the contract. The contract above set out was a settlement of the matters previously in controversy between the parties, and by that alone their rights must be determined. Sowle v. Holdridge, 17 Ind. 236.
But it is said that the contract was made under a misapprehension of facts, in this, that Holdridge supposed that the money tendered by him, and brought' into the Steuben Circuit Court, and deposited with the Clerk of that Court, was still there, and would be forthcoming when he wanted it; but' the Clerk, with whom it was deposited, is out of office, and fails, through inability or other cause, to produce and pay over the deposit. The probability is, that he has spent the money, and is wholly unable to replace it. At any rate, Holdridge has been unable to procure it from him; and being thus unable to procure it, he claims the right of repudiating the contract and falling back on his original defence to the action.
The ground on which the counsel for the appellee places the case is, that if, through the insolvency of the Clerk, the money thus deposited with him is lost, the loss must fall on Sowle, and not on Holdridge. He insists that, inasmuch as the judgment of the Court, before adverted to, gave it to Sowle, it thereby became his, and its loss should of course be his.
That might be so, if the Clerk had the deposit at the time the judgment was rendered, and if thé judgment had been a finality. But that judgment was set aside, and a new trial granted; and when thus set aside, things stood, at least so far as the title to the money is concerned, as if no trial had been had. The loss or squandering of the money by the Clerk, .with whom it was deposited, does not, in our opinion, *209avoid the contract, nor does it release Holdridge from his obligation to comply with it.
The mistake under 'which the contract was entered into, if there was a mistake, was one of law, not of fact, so far as it affected Holdridge, and mistake of law is not a legal or equitable ground for the avoidance of a contract where there is no trust, fraud, or mistake of-fact. Russell v. Branham, 8 Blackf. 277; Adams’ Eq. side p. 190.
As the rights of the parties are to be determined, then, upon the showing in the record before us, by the contract of October 19,1858, we must turn to the construction of that contract, considered in the light of surrounding circumstances.
Prior to that contract, Sowle had sued Holdridge, claiming that the latter was in default as to the payment of money. In that suit, Holdridge paid the amount due from him to Sowle, into Court. It was a case in which the right to pay the money due, and thus preserve his property and bar suit against him, was still continuing in Holdridge. The payment of money into Court, therefore, by Holdridge, was a payment of the amount to Sowle. The money became, at once, 'his, and at his risk. He could, at any time, take it out of Court, but Holdridge could not. His power over it ceased. Murry v. Bethune, 1 Wend. 191, is in point. So, also, 3 Black. Comm., Shars. Ed., p. 304, note 22; 1 Tidd Pr. p. 619, et seq., and notes, 1 Phil. Ev., by Cowen, Hill and Edwards, p. 787, et seq., and notes; Reed v. Armstrong, 18 Ind. 446. When the contract of 19th October, 1858, was made, then, providing that Holdridge should pay Sowle 900 dollars, of which sum, the 475 dollars already paid into Court, was to form a part, as that had already been paid, the contract, in legal effect was, that Holdridge should pay Sowle, the further sum of 425 dollars. If the contract be taken liberally, that Holdridge, in addition to paying the further sum of 425’ dollars, was also to go as the servant of Sowle, and bring to him the 475 dollars of his *210own money, supposed to be then lying on deposit in the Clerk’s office; still Holdridge was excused from performance of that because of his want of power to execute performance, at all events, without a power of attorney from Sowle, which it does not appear that he was furnished with.
Palmer Woodhull, for the appellant. A. Ellison, for the appellee.On the record before us the rights of the parties to this suit stand thus: Holdridge must pay to Sowle 425 dollars with the interest from the time it was due, and, on so doing Sowle must execute to him a deed for the land.
Per Curiam.The judgment is reversed, with costs. Cause remanded for further trial.