The opinion of the court was delivered by

The plaintiff, as master for Union County, brings this action for the foreclosure of a mortgage of real estate, given to secure the payment of the credit, portion of the purchase money of a tract of land sold by him as such master under proceedings for the settlement of the estate of William Long, deceased. Defendant in his answer admits the execution of the note and mortgage sued upon, but sets up as a defence the following : that the land, the purchase money of which he is now sued for, originally belonged to William Long, who by his will devised it to his wife Miriam for life, with contingent remainders to others, as appears by a copy of said will filed as an exhibit to his answer; that after the death of the said life tenant, proceedings were instituted for the settlement of the estate of said William Long, to which none of the contingent remaindermen were made parties, although some of them were then in esse; and that under an order made in said cause, which is still pending, the land in question was sold and bought by the defendant at its full fee simple value, he then supposing, and being so advised by eminent counsel, that he was buying a fee simple title, but that he is now informed and believes that he was erroneously advised, and that he bought only a life estate; and he therefore prays judgment, that the complaint be dismissed, or that the proceedings in this case be stayed until the proceedings under which the land was sold be amended, by making the contingent remaindermen parties thereto, so that he may obtain a fee simple title.

All the issues in the action wrere referred to a referee, or special master, who made his report, overruling the defence set up, and recommending that the plaintiff have judgment of foreclosure, and this report, being heard by his honor, Judge Norton, upon exceptions thereto, was duly confirmed. From this judgment defendant appeals upon the several grounds set out in the record.

We do not propose to take up these exceptions seriatim, but shall confine ourselves to the consideration of the questions really presented. For this purpose it will be necessary to state certain facts, gathered from the report of the special master and from the testimony filed with the report. From these sources we learn that the land was sold under an order made in the case of Smith *359v. Winn, to which case the defendant herein was a party, from which order there does not appear to have been any appeal. It also appears that in talcing the testimony in this case, the defendant, C. R. Long, while on the stand as a witness, was asked the following question: “What was the opinion of the children of William Long, deceased, as to what title you had purchased?” which was ruled out, and defendant excepted. This ruling, v'hich was sustained by the Circuit Judge, is made the basis of defenant’s last ground of appeal.

1 The real question made by this appeal is whether the Circuit Judge erred in holding that there was no such mistake of law on the part of appellant as entitled him to relief in this case. The mistake, if any, which was made by the defendant, w'as either in fhe construction of the will of William Long, or in supposing that the contingent remaindermen were not necessary parties to the proceedings under which the land was sold, in order to invest a purchaser at such sale with a fee simple title. It will be observed, that this is not a case for the enforcement of an executory contract of sale, but it is an action for the purchase money of the property sold, of which the party is in the undisturbed and, so far as the testimony shows, the unchallenged possession. Since the cases of Whitworth v. Stuckey (1 Rich. Eq., 404) and Van Lew v. Parr (2 Id., 321), the latter of which was decided by

the late Court of Errors, it cannot be doubted that a purchaser of land who has accepted the title, and is in undisturbed possession, cannot, unless fraud or mistake is showm, sustain an action for rescission, or claim an abatement of the price, on the mere ground that there is an outstanding paramount title in another, by which the purchaser may at some time be defeated.

2 Now, in this case there is no allegation, and certainly no proof, of any fraud, and the only question, therefore, is whether there was any such mistake as would entitle appellant to relief. The mistake claimed is not a mistake of fact, for appellant certainly knew', or ought to have known, all the facts when he bought; but the claim is that there was a mistake of law'. Without undertaking to go into any discussion of what is called in one of the cases (Norman v. Norman, 26 S. C., 48) the nice and “shadowy” distinction between a mistake of law and *360ignorance of law, it is sufficient for us to say that there was no such mistake of law, even under the cases which have gone to the extreme in that direction, as would relieve defendant. The mistake claimed to have been made was either in the construction of the will or in supposing that the rights of the contingent remaindermen would be barred by the order of sale made in a cause to which they were not parties. If the former, it is very obvious, from the cases of Keitt v. Andrews (4 Rich. Eq., 349) and Cunningham v. Cunningham (20 S. C., 317), that such a so-called mistake would not be sufficient, for, as said by Dargan, Ch., in his Circuit decree in Keitt v. Andrews, supra, adopted by the Court of Appeals, a misconstruction of a will “is rather an error of the judgment than a mistake either of the law or fact.” If, however, the mistake really relied upon (as seems to be the fact from appellant’s argument here) was in supposing that the contingent remaindermen were not necessary parties, that, upon the same principle, would not be sufficient.

' But, in addition to this, the appellant here was a party to the action in w’hich the order of sale was granted, and if such order was made in the absence of necessary parties, he is equally responsible with all the other parlies to that action for the omission to bring all necessary parties before the court, before the order of sale was made, and if he sustains any injury by reason of such omission, it must be attributed to his own fault or error of judgment, from which he can claim no relief — certainly not in this action, brought to recover the purchase money of property which he participated in inducing the court to sell, and of which he is now in the undisturbed and unchallenged possession. But, in addition to this, it seems to us that if appellant is entitled to any relief at all, as to which we express no opinion, he should seek it in the case in which the order of sale was made, which is still pending; and in fact the record before us shows that the appellant has sought relief there, but with what result, the record does not show.

3 As to the last ground, it is very clear that there was no error in ruling out the testimony there referred to. Certainly the opinions of the other children of William Long were wholly irrelevant to the issue before the court; for even if it had *361appeared that they were laboring under the same error of judgment as the appellant, that could not affect the legal rights of the parties.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.