Barker, J.
The decree dismissing the bill was right. If the plaintiffs, as heirs at law of their deceased father, could under any circumstances maintain a bill to set aside a deed which he had made in performance of a contract into which he had entered under a mistake, they have no better right than he would have if living. When he made the contract, and when he performed it by causing the land to be conveyed to the defendant Margaret McHugh, he knew of the fact that the only
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evidence of the death of her former husband was his absence from the year 1876 until the time of the marriage in 1888. He took the chance that the former husband was yet alive, and he was equally responsible with the defendant for all the consequences to her and to himself resulting from the marriage ceremony and his living with her as his wife. While there was no marriage, there was during the years from the ceremony in 1888 to his death in 1893 the exact condition of things which, in view of the possibility that the husband was alive, he must have contemplated when he made the contract. This situation gave him the companionship and services of the defendant, with no obligation to compensate her therefor.
Cooper v. Cooper, 147 Mass. 370. It gave him the possibility of having by her legitimate issue. Pub. Sts. c. 145, § 14.
Glass v. Glass, 114 Mass. 563. On the other hand, it is now impossible to place her in the condition in which she would have been but for her acts done in performance of the contract. Neither the supposed husband nor his administrators or heirs have lost the benefit which he expected to derive, that she should have from his estate nothing except such property as he should see fit to give her in his lifetime. She can get nothing from his estate either by way of compensation for her years of service or of a distributive share.
While there was a mutual mistake in that both parties believed that the husband was dead, both knew fully upon what that belief rested, and what the consequences would be if a marriage ceremony followed by cohabitation as husband and wife should occur, and it should appear that the former husband was in fact alive. It would be unjust, under such circumstances, to take away what she received in return for acts which were of value to the other contracting party, which were a detriment to herself, and which only failed being complete performance on her part through the operation of a rule of law which all parties had in mind, and which they all had good reason to suppose was not applicable, because of facts which each knew and relied upon equally with the other.
Decree affirmed.