H. N. Neill

“ But the Constitution is imperative that the homestead shall not be partitioned among the heirs during the life-time of the surviving wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under an order of the proper court having jurisdiction, to use and occupy the same. ”

“ By canceling the deed, the appellee's situation will not be changed from what it was before its execution. Even where parties have acted under a mistake of law, though there be no actual fraud, if one is unduly influenced and misled by the other to do that which he would not have done but for such influence, and he has in consequence conveyed property to another without consideration, equity will if possible restore both parties to the same condition they were before. ”

“ That if the deed be canceled, the one-half interest in the property belonging to the estate, which they allege to be worth $1250, can be returned to the estate for the benefit of the creditors, and an allowance in lieu of a homestead set aside to plaintiffs. But that if the deed be allowed to stand, both plaintiffs will be irretrievably injured; for, in the event the defendant should pay the alleged consideration, viz., $100, said sum is grossly inadequate, and the plaintiffs, especially Eva, will be deprived of the value of the homestead, viz., $2500, through no fault of theirs. ”

“ Whatever may be the effect of a mistake pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of a transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accompanied by inequitable conduct of other parties. ”

“ That the premises so attempted to be set aside as a homestead were the community property of her husband and his first wife, and therefore subject to partition between the estate of L.N. West and his children by his first wife, as the heirs of their mother. That on July 26, 1891, at the solicitation of defendant, Jeff C. West (appellee) , she executed to him a deed conveying her interest in the premises described in said order, which expressed a consideration of $100. But that in fact no consideration was ever paid, and the deed was wholly without consideration. ”