The ignorance or mistake which will au thorize relief in equity must be an ignorance or mistake of material facts ; Daniel v. Mitchell, 1 Stor. 173, Fed. Cas. No. 3562 ; and the mistake must be mutual; Allen v. Hammond, 11 Pet. (U. S.) 63, 9 L. Ed. 633; McCobb v. Richardson, 24 Me. 82, 41 Am. Dec. 374 ; Riegel v. Life Ins. Co., 153 Pa. 134, 25 Atl. 1070, 19 L. R. A. 166 ; Weiner v. Raw son, 89 Ga. 619, 15 S. E. 813. If the facts are known but the law is mistaken, the same rule applies in equity as at law, that a mere mistake or ignorance of law, where there• is no fraud trust, is immaterial: ignorantia legis neminem emcusat; Adams, Eq., 8th ed. 188. Sec Kornegay v. Everett, 99 N. C. 30, 5 S. E. 418 ; IONORANCE ; MISTAKE.' Instruments may also be rescinded and canceled when they have been obtained from persons who were at the time under duress or incapacity ; French's Heirs v. French, 8 Ohio 214, 31 Am. Dec. 441; Cook v. Toumbs, 36 Miss. 685; or by persons who stood in a confidential relation and took advantage of that relation ; Thompson v. Lee, 31 Ala. 292; 8 Beay. 437 ; Mortland v. Mortland, 151 Pa. 593, 25 Atl. 150; Armstrong v. Logan, 115 Mo. 465, 22 S. W. 384 ; Smith v. Cuddy, 96 Mich. 562, 56 N. W. 89.
Gross inadequacy of consideration ; How ard v. Edgell, 17 Vt. 9; Bond v. Watson, 22 Ga. 637; Matthews v. Crockett's Adm'r, 82 Va. 394 ; Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486; fraudulent mis representation and concealment ; Boyce's Ex'rs v. Grundy, 3 Pet. (U. S.) 210, 7 L. Ed. 655 ; Norton v. Norton, 74 Ia. 161, 37 N. W. 129 ; Harper v. Harper, 85 Ky. 160, 3 S. W. 5, 7 Am. St. Rep. 583; hardship and un fairness ; French's Heirs v. French, 8 Ohio, 214, 31 Am. Dec. 441; Bank of Republic v. Baxter, 31 Vt. 101; undue influence ; Hard ing v. Wheaton, 2 Mas. 378, Fed. Cas. No.
6,051; are among the causes for a rescission of contracts in equity.
Reasonable time means before the lapse of a time, after the true' state of things is known, so long that under the circumstances of the particular case the other party may fairly infer that the right of rescission is waived. This statement reconciles the sub stance and language of the best English au thorities; Pollock, Contracts, 630.
"In order that the remedy should not be lost by lathes or delay, it is, if not universal ly, at all events ordinarily • • * neces sary that there be sufficient knowledge of the facts constituting the title to relief ;" L. R.
5 P. C. 241.
"Acquiescence and waiver are always ques tions of fact. There can be neither without knowledge." And the knowledge must be ac tual, not merely possible or potential : "the wrong-doer cannot make extreme vigilance and promptitude conditions of rescission; " Pence v. Langdon, 99 U. S. 581, 25 L. Ed. 420. In regard to acquiescence in the contract the nature of the property concerned is material; 8 D. M. & G. 150; if a party entitled to avoid a transaction has precluded himself by his acts or acquiescence in his life time, his rep resentatives cannot dispute it afterwards; 3 D. F. & J. 535.
If before the election to rescind has been made an innocent third party has acquired an interest in the property or if in conse quence of his delay, the possession even of the wrong-doer is affected, it will preclude the exercise of the right to rescind: L. R. 7 Ex. 34. An intention to rescind must be com municated to the other party. This can be done by instituting proceedings to have the contract set aside judicially, in which case the rescission when obtained relates back to the commencement of the proceedings; L. R. 4 H. L. 73 ; or if the other party is the first to sue on the contract, the rescission may be set up as a defense and this is itself a suffi cient act of rescission without any prior dec laration of an intention to rescind ; L. R. 7 Ex. 36.
Apart from judicial proceedings the com munication of the desire to rescind need not be formal, but it must be a distinct and positive rejection of the contract ; L. R. 9 Eq. 263. But it seems that if notwithstand ing the express repudiation the other party insists on treating the contract as in force, then judicial steps should be taken; Pollock, Contracts 619.
A party exercising his option to rescind is entitled to be restored so far as possible to his former position. The contract cannot be rescinded if the position of the parties has been changed so that the former state of things cannot be restored; Pollock, Contracts 621. In re Morgantown Tin Plate Co., 184 Fed. 109.
See Tarkington v. Purvis, 128 Ind. 182, 25 N. B. 879, 9 IA R. A. 607; ELECTION OF