court submitted the two following issues to second, it tended to show that the minds of the jury: "First. Was the description in the the parties never met, and that no oral conplaintiff's testatrix's deed, so far as it pur-tract of sale had been made, because the parported to convey any more than the land ties did not have the same understanding as owned by the defendant east of the stone to the subject-matter of the contract; but wall, inserted in the deed by accident or mut- neither inference establishes a case of acciual mistake? Second. Did the plaintiff's dent or of mutual mistake as to the words or testatrix and the defendant make an oral the meaning of the deed. The remedy when agreement prior to the execution of the deed, by accident or mutual mistake a written conwhereby the plaintiff's testatrix was to buy tract does not express the actual contract of and the defendant to sell only what he owned the parties is by a reformation or rectificaeast of the stone wall, and did they attempt tion of the writing, and this is a remedy for to embody said agreement in said deed?" any party to the written contract, unless the The plaintiff requested the court to instruct statute of frauds prevents. The remedy the jury that, "if Dr. Page [the plaintiff ] sup- when the written contract does not express posed at the time of taking the deed that it did the understanding of the parties on account convey to his testatrix the Cheever lot, the jury of a mistake concerning the subject-matter of must answer the issue as framed in the nega- it, is by a rescission or cancellation of the tive," and he excepted to the refusal of the written contract, and this is a remedy for court to give this instruction. There was any party, although an option is sometimes evidence tending to show that Dr. Page in- given to the defendant in equity to have a tentionally drew the deed in the precise form rectification according to the claim of the in which it was executed, and that no words plaintiff, if he prefers it. The remedy when were omitted from it which he intended the execution of a written instrument has should be inserted, or were inserted which been procured by fraud is by a rescission of he intended should be omitted. The court it, or, in some cases, by striking out the parts ruled that the description in the deed in-fraudulently inserted; but the remedy is only cluded the Cheever lot, and if Dr. Page, at the time of taking the deed, supposed that it conveyed the Cheever lot, then he made no mistake in regard to the legal effect of the deed. Apparently, then, there was no accident and no mistake on the part of the plaintiff in regard to the language or the legal effect of the deed if he supposed that it conveyed the Cheever lot. A good deal of the evidence recited in the exceptions, so far as it is favorable to the defendant, tended to show, either-First, that the bargain, as both parties understood it, was to convey not any definite lot of land with the usual covenants of title, but only to convey all the land which the defendant owned east of the stone wall, whatever that might be, and that this indefinite description should be inserted in the deed, and that Dr. Page, in violation of this agreement, described the land in the deed by The phrase, "a mutual mistake," as used metes and bounds, so as to include the Chee- in equity, means a mistake common to all ver lot, and by his conduct induced the de- the parties to a written contract or instrufendant to sign the deed as one drawn accord-ment, and it usually relates to a mistake coning to the agreement; or, second, that, although the parties in their negotiations described the subject-matter of the bargain as all the land owned by the defendant east of the stone wall, yet each had in mind a definite lot or lots of land, and intended that they should be defined in the deed by metes and bounds, with the usual covenants of title, and that there was an honest misunderstanding in regard to the lots which were bought and sold and were to be conveyed, and that Dr. Page drew the deed according to his understanding of the bargain, and accepted it, and paid the consideration, believing that it conformed to the agreement. So far as the evidence tended to show the first of these propositions, it tended to show fraud, actual or constructive, on the part of Dr. Page; and, so far as it tended to show the for the party defrauded. The law concerning the reformation of contracts on the ground of mutual mistake is well stated in Sawyer v. Hovey, 3 Allen, 331. It is there said: "And it is a further and very material rule, that the court will not afford its aid or allow a written instrument to be affected by parol or other extrinsic evidence, unless the mistake is made out according to the understanding of both parties, by proof that is entirely exact and satisfactory, (Andrews v. Insurance Co., 3 Mason, 10;) and this for the paramount reason, that otherwise if a deed should be reformed and corrected upon proof of the mistake of one of the parties, the great injustice might be done of imposing upon the other the consequences of a contract to which he had never assented, and therefore wholly against his will." cerning the contents or the legal effect of the defendant, but two different and separate lot, but it was received by the defendant as mistakes. The mistake of Dr. Page, if he the consideration of the sale of his land, exdrew the deed as he did in consequence of a cluding the Cheever lot. If the defendant is mistake, was in understanding that the de- not bound by the deed as it is, it cannot be fendant owned and agreed to sell and convey reformed against the consent of the plaintiff, by proper description the Cheever lot; but ap- so as to exclude the Cheever lot, because that parently he was under no mistake in regard would be to make a contract which the plainto the contents or the legal effect of the deed. tiff never intended to make. If the deed The mistake of the defendant, if he was un- were declared void, the defendant cannot reder any mistake, was in regard to the con- tain the consideration paid; and in a suit in tents and legal effect of the deed, which he equity, brought by the defendant, to rescind supposed did not include the Cheever lot; the deed, or to declare it void, if this relief but he was under no mistake in regard to was granted, an account might be taken of the fact that he did not own the Cheever lot, the rents and profits received by the plaintiff and did not intend to include it in the de- and Mrs. Page from the defendant's land scription of the land conveyed by the deed. while he and she held possession under the The only mistake which in any sense can be deed, and of the consideration paid, with incalled a common mistake was that each mis-terest, and a balance be struck, and the deunderstood the understanding of the other in fendant might be ordered to pay this balregard to land which was agreed to be con-ance, if any was due from him, and this veyed, which is a mistake as to the subject-might be charged as a lien upon the land, matter of the contract. If this can with any until paid, or the payment of it might be propriety be called a mutual mistake, it is not such a mutual mistake as is described in the first issue framed for the jury. That relates to a mutual mistake in inserting in the deed the description of the land so far as the deed purports to convey more land than the defendant owned east of the stone wall. On the assumption on which, as we understand it, the case proceeded, namely, that the acts of the plaintiff were to be regarded as the acts of the grantee in the deed, and that the plaintiff intentionally drew the deed in the form in which it was executed, we think that the jury should have been instructed to find the first issue in the negative, if they found that the plaintiff intended and understood that the deed drawn included the Cheever lot. The verdict for the defendant cannot be supported by the answer to the second issue, standing alone. This issue does not clearly present the questions whether the parties intended that the deed should describe the land by metes and bounds, and should contain the usual covenants of a warranty deed, and whether there was a misunderstanding as to the lots of land which were to be conveyed. The exceptions, therefore, must be sustained, and the verdict and the findings of the jury on the issues must be set aside. made a condition of the decree. Bloomer v. Spittle, L. R. 13 Eq. 427; Torrance v. Bolton, L. R. 14 Eq. 124, 136, L. R. 8 Ch. 118; Allen v. Hammond, 11 Pet. 63, 72; Adams, Eq. *191; Daniel v. Mitchell, 1 Story, 172; Brown v. Lamphear, 35 Vt. 252; Kerr, Fraud & M. (2d Ed.) 373. The fact that the deed was to Anna F. Page, who paid the money, and that the plaintiff is a devisee under her will, might require that the legal representatives of her estate should be made parties to the suit in equity in order that complete justice might be done. St. 1883, c. 223, § 14, permits a defendant to allege as a defense in an action at law "any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff's claim or cause of action." It deserves consideration whether this permits a defendant in an action at law to allege facts in defense which, according to the usual practice in equity, entitle him to be relieved against the plaintiff's cause of action only upon condition that he pay money or secure the payment of it, or perform some other acts when the condition has not been performed, and there has been no tender of performance. See Scott v. Littledale, 8 El. & Bl. 815; Perez v. Oleaga, 11 Exch. 506. As there must be a new trial, we have deemed it proper to call the attention of the defendant to some of the questions which may hereafter arise, although they are not now before us. For these reasons, a majority of the court are of the opinion that the exceptions must be sustained. Exceptions sustained. (150 Mass. 25) Whether, if both parties expected that the deed should define by metes and bounds the land to be conveyed, and should contain the usual covenants of title, but there was an honest misunderstanding as to the lots which the defendant owned and was to convey, and the plaintiff drew the deed according to his understanding of the bargain, and the defendant executed it without a knowledge of its contents, supposing that it did not include the Cheever lot, these facts could be set up as a defense under St. 1883, c. 23, § 14, is a question which deserves consideration. Upon such a state of facts it is apparent that the $1,300 was paid by Mrs. Page as the con1. A compromise of a suit by an assignee to re sideration of the purchase of all the land de-ment of the costs by the defendant therein, on concover land conveyed in fraud of creditors, on pay. scribed in the deed; including the Cheever sideration that the assignee relinquish the claim v.22N.E.no.9-5 DANA v. TAYLOR. ACCORD AND SATISFACTION-RES ADJUDICATA— 2. An entry of "neither party," entered in an action, does not exclude evidence of an agreement that defendant should pay the costs of the suit and plaintiff give up the claim of fraud in the conveyance of the land in dispute, and not bring another action to recover it on that ground; and the ques and would not again sue upon it, under a decree of | iams on or about the same date. Defendant the court of insolvency allowing the same, is suf- asked the court to rule that as a matter of ficient proof of accord and satisfaction, where the authority of the assignee to compromise is not law the present action could not be mainquestioned, and is a bar to another action by a sub- tained, and that the acts done, and payment sequent assignee on the same cause of action. of costs, under the same, constituted a bar to this action; but the court declined so to rule, and did rule that the evidence did not show that any compromise had been made of the former suit which would constitute a bar to the present suit, and that no defense to this action appeared on the foregoing evidence and facts, and did not submit this branch of the case to the jury. The jury found for plaintiff, to which rulings and refusal to rule the defendant excepts. tion whether or not such was the understanding should have gone to the jury. Exceptions from superior court, Middlesex county; ROBERT R. BISHOP, Judge. A. V. Lynde and W. P. Harding, for plaintiff. O. T. Gray, for defendant. Action brought by James Dana, as assignee of the estate of David L. Taylor, an insolvent debtor, against Eliza A. Taylor, the wife of the insolvent, to recover possession of certain real estate, with the buildings thereon, claimed W. ALLEN, J. The ruling of the court beto have been transferred to the defendant by low, that the evidence did not show that any him in fraud of his creditors. The answer compromise had been made of the former was a general denial, and a specification of suit which would constitute a defense to this defense alleging the bringing of a prior suit action, upon which the question was taken by one Gilbert Williams, a former assignee from the jury, cannot, we think, be sustained. of said estate, for the same cause of action, The claim made by the assignee in this and and that said suit has been compromised, ad- in the former action was to recover from the justed, and settled by said Williams, and that defendant certain property alleged to have the same constituted a bar to this action. been conveyed to her by the insolvent in Plaintiff introduced in evidence the proceed- fraud of his creditors. The authority of the ings in insolvency commenced by the said in- assignee to compromise and settle the claim solvent debtor on January 26, 1881, the sched- was not questioned in the argument. If the ule of property containing no real estate, and defendant paid the costs of the former action nominal personal estate, from which the said under the agreement that, in consideration Williams realized nothing, and a petition to of such payment, the assignee would give up the judge of the court of insolvency, praying the right he claimed, and would not again for the removal of said Williams as assignee, sue upon it, there would be sufficient proof and a decree of said court, dated January 21, of accord and satisfaction of the cause of 1887, removing him, and the appointment of action. The question between the parties the plaintiff as assignee in his stead. He in- was whether the land had been fraudulently troduced evidence tending to show that by conveyed, and that is a controversy which deeds dated January 24, 1881, the said in- can be settled by a payment under a parol solvent debtor transferred the premises in suit agreement, although it may incidentally afto one Pratt, and that said Pratt simultane- fect the title to land and the right to try ously transferred the same to the defendant, the question in a real action to recover the without any consideration passing between land. The agreement of the parties in writthem. Defendant relied for her defense upon ing that nonsuit and default should be ena compromise made with said Gilbert Will-tered in the action does not exclude eviiams as assignee, and claimed that the same dence of an agreement that the defendant was a settlement in full of the cause of action should pay the costs of the suit, and that in in this suit. It was admitted that Williams consideration thereof the plaintiff should give was duly appointed the assignee of said David up his claim that the land had been frauduL. Taylor; that on April 4, 1883, he, as such lently conveyed, and should not bring another assignee, brought a suit against this defend-action to recover it on that ground. Whether ant for the same cause of action as that relied upon in the present case, and to recover the same premises. And the defendant introduced in evidence a petition, dated April 24, 1886, by said Williams, as assignee as aforesaid, to the judge of the court of insolvency for leave to compromise said suit by the entry of "neither party" therein, upon the payment of the costs of the suit, and a decree of the said judge of the court of insolvency allowing the same, dated May 6, 1886. She also introduced the record of the entry of SEWER ASSESSMENTS-EXEMPTIONS-CEMETERIES. "neither party" in said suit, June 5, 1886, Land dedicated by the legislature to the perand called the said David L. Taylor, who tes-petual use of the public as a burial ground, and tified that he paid the costs of the former ac- der Pub. St. Mass. c. 50, which authorizes the exempted from all public taxes, is not taxable untion on behalf of his wife to said Gilbert Will-proper officers of towns and cities to build drains that was the understanding under which the money was paid was a question for the jury to determine, under the instructions of the court. Exceptions sustained. (150 Mass. 12) PROPRIETORS OF MT. AUBURN CEMETERY Report from supreme judicial court, Suf-ized to grant rights of burial in the lots into folk county; WILLIAM ALLEN, Judge. and sewers, and to levy assessments upon all own- and appropriate any of their real estate for ers of real estate deriving benefit therefrom in proportion to the frontage of such realty on the a cemetery or burying-ground, as aforesaid, street in which the sewer is laid, and constituting the same shall be deemed a perpetual dedicasuch assessments liens upon real estate assessed, tion thereof for the purposes aforesaid, and where no use is made by the cemetery of a sewer the real estate so dedicated shall be forever erected thereunder, as it derives no benefit therefrom, and cannot be sold for the taxes if assessed. held by said society in trust for such purposes, and for none other." It was authorwhich the land should be divided, "and every Petition by the proprietors of the ceme- right so granted and conveyed shall be held tery of Mount Auburn for certiorari against for the purpose aforesaid, and for none other, the board of aldermen of the city of Cam- as real estate, by the proprietor or proprietors bridge and others, and praying for an in- thereof, and shall not be subject to attachjunction restraining the city collector from ment or execution." Certain land in Camselling petitioners' lands. Defendants de-bridge was dedicated and appropriated as a mur. The trial judge reports to the full cemetery under this statute. By St. 1835, bench for decision, on the petition and de- c. 96, the petitioner was incorporated and authorized to receive a conveyance of the cemetery from the Massachusetts Horticultural murrer. Geo. Putnam and W. L. Putnam, for petitioners. Chas. J. McIntire, for respond-Society, to be held upon the same trusts to ents. the cemetery was exempted from all public taxes, and it was required that lots should be sold as fast as practicable, and that the proceeds of sales retained by the corporation should be devoted to the preservation, improvement, and enlargement of the cemetery, and the incidental expenses thereof, and to no other purpose. and for the same purposes, and with the same powers and privileges as set forth in W. ALLEN, J. Pub. St. c. 50, § 1, author- St. 1831, c. 69. The land which was conizes the proper officers of towns and cities to veyed by the Massachusetts Horticultural make main drains and common sewers, and Society to the petitioner under this statute is section 4 provides that "every person who all laid out in lots, with drive-ways, walks, enters his particular drain into such main and appendages necessary to its use as a cemdrain or common sewer, or who by more re-etery, and in a large portion of it burial rights mote means receives benefit thereby for drain-have been sold. By the act of incorporation ing his cellar or land," shall pay to the town or city a proportional part of the charge for making the sewer, to be assessed by the mayor and aldermen. Section 7 provides that the city council of a city, or the voters of a town, may adopt a system of sewerage for the whole or a part of its territory, and may provide that assessments under section 4 shall be made upon owners of estates within such territory by a fixed uniform rate, based upon the estimated average cost of all the sewers therein, according to the frontage of such estates on any street where the sewer is laid, or according to the area of such estate within a fixed depth from such street, or according to both frontage and area. Section 8 provides that, instead of the assessment under section 4, it may be determined that every person who uses the sewer shall pay therefor a reasonable sum, to be determined by the proper officers. The mayor and aldermen of Cambridge made a sewer through Mount Auburn street, on which Mount Auburn cemetery abuts, and assessed the cost upon the owners of estates on the street, under the seventh section, and included the petitioner in the assessment as owner of the cemetery. The only question is whether it is liable to be assessed. St. 1831, c. 69, authorized the Massachusetts Horticultural Society to dedicate and appropriate any part of the real estate owned by it as and for a rural cemetery or burying-ground, and for the erection of tombs, cenotaphs, and monuments for and in memory of the dead, and for that purpose to lay out the same in burial lots, and to plant and embellish the same with shrubbery, flowers, trees, walks, and other mural ornaments, and provided that "whenever the said society shall so lay out The assessment in question is a tax levied under the authority and the restrictions of the constitution. Drogan v. City of Boston, 12 Allen, 223; College v. City of Boston, 104 Mass. 482. It is a public tax in the sense that it is levied for a public object; it is a local tax in the sense in which most public taxes are local, that it is limited to a certain locality; it differs from ordinary public taxes in that it is not levied upon the polls and estates within a municipality or a district in respect of public or common benefits, but upon particular lands in respect of a particular benefit received by them from the execution of a public object. Taxes voted by towns and cities for public ways and common sewers are for public objects, and are in every sense public taxes. When the construction of a particular way or sewer is not only for the public benefit, but is also of special benefit to particular lands, the whole or a part of the tax therefor may be levied upon the lands so specially benefited, and there are general statutes prescribing the occasions and the manner of assessing such taxes. Pub. St. cc. 50, 51. In the case of public ways the assessment on any land is limited to one-half of the benefit to it; in the case of sewers the whole or any part of the cost-except in the city of Boston, where at least one-fourth of the expense must be borne by the city-may be assessed propor tionally upon the lands benefited, either in | for profit. The word "estates," as commonly proportion to the value of the land or to the used, does not include such land. The requantity of the land. mote benefit, by reason of which the special tax was authorized to be imposed, must be understood to be a pecuniary benefit resulting from the increased market value of the land, and which cannot be predicated of land which has and can have no market value. Downr v. City of Boston, 7 Cush. 277; Wright v. City of Boston, 9 Cush. 233. The land in At the time of the dedication of Mount Auburn cemetery and of the incorporation of the petitioner there was no general statute which authorized public officers to construct drains and sewers. St. 1796, c. 47, and Rev. St. c. 27, gave no such authority, and while the statute provided for the construction of main drains and common sewers by individ-question is perpetually devoted by law to the uals, and provided that "every person who afterwards shall enter his particular drain into the same, or by more remote means, shall receive any benefit thereby for the draining of his cellar or land, shall pay to the owners" a proportional part of the expense of making and repairing the same, a drain so made was private property, and the statute could not be construed as authorizing a tax or compulsory assessment upon one who did not voluntarily accept the benefit of it. City of Boston v. Shaw, 1 Metc. 130; Downer v. City of Boston, 7 Cush. 277; Wright v. City of Boston, 9 Cush. 233. St. 1841, c. 115, made main drains and common sewers the property of cities and towns, and authorized municipal officers to make and maintain them in their respective towns and cities. Section 2 provided that "every person who may hereafter enter his particular drain into any main drains or common sewers so constructed as aforesaid, for the draining of his cellar or land, or in obedience to the by-laws or ordinances of the town or city, or who by any more remote means shall receive any benefit thereby for draining his cellar or land, shall pay to the town or city a proportional part of the charge of making and repairing such main drain or common sew er." This statute was to take effect only in towns and cities which accepted it. This provision was re-enacted in Gen. St. c. 48, § 4, in the form in which it appears in Pub. St. c. 50, § 4. The provision requiring the assent of towns and cities was repealed by St. 1869, c. 111. burial of the dead, and it cannot be sold or appropriated to any other use until the law shall be changed. It is true that a cemetery may be so situated that it may be benefited as a place of burial by drainage. But the question here does not arise, from the actual or voluntary use of the sewer, that may be provided for under section 8 of the statute; the question is whether the right to use the drain without the actual use can be taxed as a benefit to the land. There can be no benefit from the right without the use, unless in the increased value it gives to the land. In the case of land which may be used as building lots the right to use the sewer in the future increases the present market value of the land. The proprietors of the cemetery can derive no benefit or advantage from the sewer except from its actual use, and they may be unable or unwilling ever to use it; and it can never be used by them in any way to increase the market value of the land. The use to which the land is irrevocably devoted renders it incapable of receiving the benefit intended by the statute. It is not necessary to decide what is affirmed by the petitioners, that the land is devoted to a public use. The question we are considering is not whether a public cemetery, which may be liable to be sold by a town as the land upon which a court-house stands can be sold by a county, would be exempt from this assessment under the decision in Worcester Co. v. Worcester, 116 Mass. 193, nor whether the land of a private cemetery, which may have been taken by the right of eminent domain, which is exempt from taxation, and across which a public way cannot be laid, or which cannot be taken for a public use without special authority of the legislature, (see Pub. St. c. 11, § 5; c. 82, §§ 16, 29,) but which The question before us is not so much whether the legislature intended by the provision in the chapter exempting from public taxes to exempt from assessments under general laws for betterments and benefits,-for such laws were then unknown,-as whether it was the intention of those laws when sub-the legal and beneficial owners are at liberty sequently enacted to include the cemetery in to appropriate to general purposes or to sell lands to be specially taxed under them. Other for such purposes, is exempt by the statute statutes provided for the drainage of mead- from taxes of this kind, but whether, when ows, swamps, or lowlands. Rev. St. c. 115; the legislature had appropriated certain land Pub. St. c. 189. The statutes relating to for a burying-ground and forbidden that it main drains and common sewers were in- should ever be sold or used for any other tended for the improvement of land for pur-purpose, and had forbidden that moneys reposes of residence or business, and having a ceived from it should be devoted to any purvalue for building purposes. The drainage pose except its preservation and improvement of houses, rather than of lands, is intended. as a burying-ground, they intended that it Neither the subject-matter nor the language used indicate an intention that the statute should apply to lands perpetually devoted by the legislature to the use of a burial-place for the dead, and which cannot be sold or used should be taxed for the right to use a sewer laid out under St. 1841, c. 115, and subsequent acts. As bearing upon this the provisions of Pub. St. c. 50, § 7, first enacted in St. 1878, c. 232, § 3, and St. 1879, c. 55, are |