Analysis of the circumstances in which rectification may-he claimed.

(o) Above, p. 707.

(p) 34 Ch. D. 367.

(q) Above, p. 707.

Common mistake.

Plaintiff mistaken, but estopped at law.

(r) See above, p. 668. (s) 28 Ch. D. 255. (t) 1900, 1 Ch. 616.

(u) Above, pp. 701, 702. (x) Above, pp. 703 - 707.

4(2)

Defendant mistaken but estopped at law, and subsequent correction of the error.

(y) 28 Ch. D. 255.

(z) Above, p. 69l.

(a) Above, p. 693.

(b) Sec above, p. 690; below, p. 718.

(c) 28 Ch. D. 255.

(d) Above, pp. 710 - 712.

(e) Above, pp. 668, 698.

(/) L. R. 13 Eq. 427: above, p. 712.

No antecedent contract at all.

(g) See above, pp. 701 - 703.

(h) L. R. 13 Eq. 427.

(i) 30 Beav. 445; above, p. 710.

(k) L. R. 5 Eq. 1; above, p. 711.

(l) Above, p. 711.

Fraud.

(m) Above, pp. 5, and n. (t), 711.

(n) Above, pp. 677, 699, n. (s). (o) Above, p. 677.

The right to obtain rectification of a written instrument is a mere equity (u) and not an equitable interest (x). It is like the right to set aside a conveyance induced by fraud (y). If therefore the legal or equitable estate or interest in any property be assured to any one by a conveyance liable to be rectified on account of a common mistake, the right to rectification cannot be asserted as against a purchaser taking from or through some party to the unrectified conveyance for value, in good faith and without notice of the mistake (z). But as in the case of fraud (a), this doctrine applies only to purchasers claiming under conveyances and does not, as a rule, extend to assignees of the benefit of a contract; although a contract for the sale of land, which has been executed by payment of the whole purchase money appears to stand, as regards the passing of the equitable estate in the land sold, upon the footing of a con-veyance.

Rectification of a conveyance cannot be had against a purchaser for value without notice.

(p) Above, pp. 710 - 713. (5) 30 Beav. 445.

(r) 28 Ch. D. 255. (I) Above, pp. 690, 691. (u) Above, pp. 699 sq. (x) See Phillips v. Phillips, 4 De G. F. & J. 208, 218: Cave v.

Cave. 15 Ch. D. 639, 647.

(y) Above, p. 674.

(z) Thomas v. Darts. Dick. 301, 304; Blackie v. Clark, 15 Beav. 595; Garrard v. Frankel, 30 Beav. 445.

(a) Above, p. 675.

As we have seen (b), upon the sale of land, rectification may be obtained of an error common to both parties either in the written contract prior to completion or in the conveyance. And it is no bar to an action for rectification on this ground of a conveyance on sale that the contract has been completed (c). The case has no resemblance to that of a contract induced by an innocent misrepresentation but completed by actual conveyance according to the representation made(d). Thus, where by mutual mistake parcels have been omitted from the conveyance (e), or an easement intended to be granted has been incorrectly defined (f), or an exception or a reservation has been left out (g), or proper words of limitation have not been used(h),or the expressions importing the statutory covenants for title have not been put in or have not been restricted as they ought to have been (i), or any covenant not intended to be made has been inserted (k), the conveyance may be rectified; except to the prejudice of a purchaser for value claiming thereunder in good faith and without notice of the error (l). If in any of these cases the legal estate in any hereditaments failed, by reason of the error, to be assured as agreed, and an order of the Court for rectification of the conveyance be obtained, there is no need of any further express assurance of such legal estate; for it will pass by the effect of the order in the manner in which it is limited by the conveyance as so rectified (m).

On sale of land, rectification may be obtained either before or after conveyance.

(b) Above, pp. 568, 574, 588, 704.

(c) See Beaumont v. Bramley, T. & 1\. 41, 52; and cases cited above, pp. 568, n. (h), 704, nn. (n) (o), and in notes (e) (f) (g) (h), below.

(d) Above, pp. 540, 576 - 578, 642.

(e) White v. White, L. R. 15 Eq. 247.

(f) Cowen. Truefitt,Ld., 1899, 2 Ch. 309.

(g) Exeter v. Exeter, 3 My. &

Cr. 321: Mortimer v. Shot-fall, 2 Dru. & War. 363; above, pp. 564, 565.

(h) Re Bird's Trusts, 3 Ch. D. 214; Re Ethel and Mitchells and Butters' Contract, 1901, 1 Ch. 945, 948; above, p. 574.

(i) See above, pp. 568, 588.

(k) Bob v. Butterwick, 2 Price, 190.

(l) Above, p. 719.

(m) White v. White, L. E. 15 Eq. 247; Hanley v. Pearson, 13 Ch. D. 545.