Adair v. McDonald , 42 Ga. 506 ( 1871 )

McCay, J.

1. We recognize fully the well settled rule that equity will not interfere against a grantor, in favor of a volunteer, to correct a mistake or reform a defective conveyance. The rule also extends to a bill by a volunteer, under a prior voluntary deed against a grantee, under a subsequent voluntary deed by the grantor: Code, section 3060; Story’s Equity, sections 175, 180. Rut this rule is based upon the reasonsonable proposition that the volunteer has no claim on the grantor. If there is a mistake or a defect, it is a mere failure in a bounty, which, as the grantor was not bound to make, he is not bound to perfect. So in a contest between a prior and subsequent voluntary grantee. As the grantor was free to do as he pleased, and was not compellible to perfect his deed, he was equally at liberty to make a second deed. Rut here the parties claim under the same deed. The complainants insist that the grantor did not, in fact, make the deed set-up by the defendants. The grantor’s interests are not at stake. He has not, say the complainants, exercised his free power to do as he pleased by giving this property to the defendants. His true intent is not in the deed, under which the defendants claim. It is the very highest equity to see to it that the real intent of the grantor shall have force. He or his representative is only a party pro forma, and, at best,. stands indifferent between these disputants. It is not claimed, either, that after a defective deed was made, he exercised his undoubted right to make another. It is a contest as to what he intended by the one deed he has made. For these reasons we do not think this case comes within the rule which denies the aid of equity to assist volunteers.

2. Equity may correct a mistake in a will, and in a will all are volunteers: Story’s Equity, sections 179, 181. Neither the authorities, nor the principles on which this rule is founded apply to cases where the grantor is indifferent, has done nothing inconsistent with the deed proposed to be reformed, and the contest is, in fact, not between claimants under different deeds, under two independent acts of the voluntary grantor, but under the same deed. These parties are all within the scope of the grantor’s intent; they all stood towards him in the same situation; they were his grand-children, and his duty to provide for one was the same duty to them all. This general principle controls most of the points of this ease.

3. We are free to say that we think the complainant’s case a weak one, on the testimony, and if this were the first trial, we incline to think we should send it back for a rehearing. There is but little in the testimony to justify the verdict as found. We think the evidence of mistake or fraud is strong, but it is not very clear as to what the precise intent was. That these complainants were to share in the bounty granted in the deed, is pretty clear, but it is not clear that Mrs. McDonald was not also to share. As she is not claiming either by herself or her representatives, and, as the evidence is strong that the complainants were to be the sharers, we will not disturb the finding. That three juries have, on the facts, found for the complainants, and three Judges refused new trials, indicates that the equity of the complainants is very strong; and as the failure in the proof is rather in the nature of a variance (which might have been corrected by an amendment,) than a substantial failure, we, with some hesitation, have concluded not to interfere. It is a high prerogative for a Court to set aside the third verdict of a jury, for the plaintiffs, on the facts, and, though we do not say a case demanding such an interference cannot arise, we do not think this is such a case.

Judgment affirmed.