Majority
Headnote
Mistake. — A Complaint Claiming Relief on the Ground of mistake must aver not only the fact of the mistake, but also the circumstances under which the mistake occurred, so far as necessary to bring the ease within the rules for giving equitable relief.— The plaintiffs claimed, and in the court below obtained, relief, on the ground of a mistake occurring upon their part in attempting to effect a redemption from the sheriff’s sale upon foreclosure of a mortgage.
It is well settled that a complaint claiming relief on the ground of mistake must not only distinctly'aver the fact of the mistake, but also set forth the circumstances under which it occurred, so far as those circumstances may be necessary to present a case within the rule of equity upon which relief is granted. Tested by this rule, the complaint here is radically defective, and the demurrer should have been sustained.
Judgment and order denying new trial reversed and cause remanded, with directions to sustain the demurrer to the complaint.
Remittitur forthwith.