judgments against principals upon official bonds ineffectual as against sureties, is more easily sustained on principle. In fact the prima facie doctrine has less to justify it than that which makes a judgment against the principal conclusive upon his sureties, except where there has been fraud and collusion. There is some difficulty in standing upon the middle ground of presumption.

The counsel for appellants have cited and relied upon the very recent case of Pioneer Sav. & Loan Co. v. Bartsch, 51 Minn. 474; 38 Am. St. Rep. 511. We regard the views therein set forth as sound on principle, and rest satisfied with the conclusion therein reached; but, for the reasons before mentioned, we adopt the prima facie rule as the most practical and desirable one when official bonds are involved.

Order affirmed.

JUDGMENT AGAINST OFFICER AS EVIDENCE Against the SuRETIES.-The law as to the effect of a judgment against the principal as evidence against the sureties is not settled. Its various phases are discussed in a monographic note to Charles v. Hoskins, 83 Am. Dec. 380, 381. See, also, Pasewalk v. Bollman, 29 Neb. 519; 26 Am. St. Rep. 399.

LANE V. HOLMES.

[55 MINNESOTA, 379.]

EQUITY-MISTAKE. FOR A MISTAKE OF LAW, pure and simple, there is generally no remedy, but relief may be afforded in equity if the sur rounding circumstances are of such a nature that the adverse party is seeking to avail himself of the opportunities afforded by the mistake, and is attempting to enforce an unconscionable advantage without consideration, provided the other party is not blamable.

MISTAKE. EQUITABLE RELIEF CAN BE GRANTED if there is a mistake of fact, or a mistake of law and fact combined, especially if it does not result in injury to the opposite party.

MISTAKE IN FORECLOSING MORTGAGE-RESALE.-If, by mistake in the computation of interest, mortgaged premises are sold at foreclosure sate for more than is due, and the property is worth less than is due, the mortgagee, having bid in the premises with the object of extinguish ing the indebtedness, may be relieved in equity, and a resale ordered, without a tender on his part of the value of the use of the premises after the expiration of the time for redemption, that value being much less than the mistake made in the interest.

APPEAL by the plaintiff, Mary C. Lane, from an order denying her motion for a new trial.

W. B. Douglass, for the appellant.

John E. Greene, for the respondent.

381 BUCK, J. The plaintiff and her husband executed to the defendant a promissory note as follows:

"$3,000.

MOORHEAD, July 10, 1885. "Five years after date, I promise to pay to the order of John W. Holmes three thousand dollars, at Fulton Bank, New York, value received, with interest before and after maturity at the rate of per cent per annum until paid.

"ALPHEUS F. LANE. "MARY COLE LANE."

At the same time they executed a mortgage on the northeast quarter of section thirty-two (32), township 139, range 48, in Clay county, to secure the payment of said note, which mortgage contains this clause: "Provided, nevertheless, that if said Mary Cole Lane and Alpheus F. Lane, parties of the first part, their heirs, shall well and truly pay or cause to be paid to the party of the second part, his heirs, the sum of three thousand dollars and interest, according to the conditions of one promissory note in the amount of $3,000, made, executed, and delivered by said Mary Cole Lane and Alpheus F. Lane to said John W. Holmes, due five years after date, which said note is without interest, bearing even date herewith."

There being default in the payment of the note, or any part thereof, the defendant, residing in the state of New York, sent the note and mortgage to an attorney of Moorhead, Minnesota, with instructions to foreclose the mortgage, but without instructions as to the amount due. The attor ney foreclosed the mortgage, and in the notice of such foreclosure proceedings it was claimed that there was due upon said note and mortgage the sum of $4,102, which amount was arrived at by computing interest upon the note at the rate of seven per cent per annum from the date thereof to the date of the notice of foreclosure sale; and the said premises were bid off, December 15, 1890, for that sum, with expense of foreclosure added, amounting to $4,222.34. The premises were bid in by the 382 defendant's attorney for and in the name of defendant in good faith, and without any design on the part of the defendant or his said attorney to defraud or injure plaintiff, or prejudice her interests or rights in the premises, as the said premises at the time of such fore

closure sale were not of greater value than $2,500, and never were, at any time between the time of such sale and the time of the commencement of this action, of greater value than $3,000. The defendant did not know until after such foreclosure sale that such interest had been included in the amount for which said premises were so bid in for him by his attorney, as it was the purpose and intent of the defendant by such foreclosure to extinguish the indebtedness of the plaintiff and her husband to him under said note and mortgage; and that the only instructions he gave to his said attorney in the foreclosure proceedings were that the premises should be bid in for the defendant for the full amount due, regardless of the value of the mortgaged premises, it not being the intention of the defendant at the time of the execution of the mortgage to charge interest upon the indebtedness thereby secured, nor the understanding of the plaintiff that interest should be charged thereupon. There was no redemption from such foreclosure sale, and the plaintiff did not have actual notice of the sale or the amount bid until six months subsequent to the time of such sale, although her brother was her tenant, and cultivating the premises during the foreclosure proceedings, and boarded near said farm, and upon whom due notice of foreclosure proceedings were served as the party actually in possession, as required by law. The plaintiff never objected to the sale on account of the amount claimed in the notice of sale being in excess of the amount legally due upon the mortgage debt, and she has never tendered to plaintiff any amount upon said mortgage debt, and the defendant did not at the time of sale, nor at any other time, ever receive from the sheriff or other person any money as the proceeds of said sale.

This action was commenced in the month of November, 1892, to recover the sum of $1,032.80, being interest so added to the principal of said note, and claimed to be the surplus over and above the amount actually due on said note and mortgage at the time of such foreclosure sale. On the trial in the court below the defendant in open court tendered to the plaintiff a deed of conveyance to the 383 plaintiff of the premises described in said mortgage upon the payment to this defendant of the sum of $3,000, without interest or costs of said foreclosure suit, which tender was refused by the said plaintiff. Briefly, the case is this: Plaintiff or her husband, on July 10, 1885, or before that time, received of defendant

$3,000, which sum was to be without interest, as they claim, and payable in five years, secured by a mortgage on her land, worth at the time of the foreclosure sale, December 5, 1890, not exceeding the sum of $2,500, and at no time since of greater value than $3,000; and they now assert their legal right to pay and satisfy the note and mortgage with accrued interest from the maturity of the note, July 10, 1890, with the mortgaged property of less value than the amount legally due on the mortgage, and then, in addition to this, to recover a judgment against the defendant of $1,032.80, an alleged surplus on the foreclosure sale, and which accrued, if at all, by an error or mistake on the part of defendant's attorney in the computation of the interest on the note and mortgage. If this action is sustained the plaintiff will recover a judgment for $1,032.80, for which she never paid any consideration whatever. We have no hesitation in saying that such a claim is unconscionable, and it would be a reproach to our jurisprudence if the defendant cannot be afforded relief.

In view of the admission of the parties as to the agreement not to pay interest on the $3,000 we are not necessarily called upon to decide whether the note drew legal interest; but when we examine the mortgage, and find therein a clause wherein it is stated that it is given to secure this note of $3,000 and interest, and then also stating that the mortgage is given to secure the same note without interest, we are not surprised that the attorney construed the note as drawing interest. In the case of Hoopes v. Collingwood, 10 Col. 107, 3 Am. St. Rep. 565, the court assumes that a note similar in form to the one in this case drew legal interest. Such uncertainty, as to whether the note and mortgage drew interest, would fully justify the findings of the court below that the interest so added was done in the utmost good faith by the attorney, and we do not decide but what he was legally right in such computation, so far as relates only to the interest on the note. But, in addition to this complex question of the payment of interest involved by the terms of the 384 note and mortgage, it now appears that at the time of the execution of the note and mortgage the parties understood that neither the note nor mortgage should draw interest at any rate. Of this latter fact the defendant's attorney does not appear to have been notified, or aware of that fact at the time he so computed the interest on the note or at the time of the foreclosure sale. If he had known of this im

portant and conceded fact it would have thrown such light upon the question as would undoubtedly have induced him to have foreclosed the mortgage without any claim for the five years' interest, and thus have prevented this unfortunate litigation. Assuming this to be so, we then think that such attorney was misled by his ignorance of an existing material fact, known, it is true, to both parties, but unknown to defendant's attorney, who resided many hundreds of miles distant from his client.

Now, construing the note and mortgage together, and conceding that they did not by their terms draw interest until due, and that the attorney, in computing the interest on the note from its date to maturity, made a mistake in the law applicable thereto, is the defendant without remedy or relief? If we are correct in our view of the fact that the attorney was misled by his ignorance of the existence of a material fact by the agreement of the parties that the note should not draw any interest, then we have to deal with two mistakes one of law and one of fact; and, where both combine to constitute any injury to a party, he is entitled to equitable relief, especially where such circumstances surround the case as are presented by this record. We are not unmindful of the general rule that for a mistake of law, pure and simple, there is generally no remedy or relief, but there may be relief afforded in equity if the surrounding circumstances are of such a nature that the adverse party is seeking to avail himself of the opportunities afforded by the mistake, and attempting to enforce an unconscionable advantage without consideration, and the other party not being blamable: Benson v. Markoe, 37 Minn. 30; 5 Am. St. Rep. 816. In the case just cited numerous authorities are quoted to show that in mistakes of law in certain cases relief may be afforded, and the case itself is an instructive one upon this question. It is also there held that such relief may be afforded for the mistake of only one of the parties, and that the mistake need not be mutual. But in cases where there 385 is a mixed question of mistake of law and fact, or of fact alone, relief can be granted, especially if the opposite party will not thereby be injured.

The plaintiff claims that the defendant did not offer to pay plaintiff the value of the use of the premises by defendant after the expiration of the time for redemption, amounting to $200; and that, if the defendant seeks equitable relief, he