Adair v. Amcdonald

• Decision Date: 31 January 1871
• Parties: C. D. ADAIR, administrator, plaintiff in error. v. M. A.McDONALD et al., defendants in error.
• Court: Georgia Supreme Court

42 Ga. 506

C. D. ADAIR, administrator, plaintiff in error. v. M. A.McDONALD et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Reforming Contracts. New Trial. Before Judge Parrott. Murray Superior Court. May Term, 1870.

This cause was here in 1868. See Adair, administrator, v. Adair, administrator, 38 Georgia Reports, 46, where the cause is fully reported. A new trial was granted. Another verdict was had in favor of reforming the deed, etc., and the cause came here again in 1869. See same case, 39 Georgia Reports, 75. A new trial was again awarded, and a third verdict, in favor of reforming the deed, etc., was obtained.

A motion for new trial was made upon the grounds that the verdict was unsupported by evidence, and upon various alleged errors of the Court in rejecting evidence, etc. As the opinion of the Court can be understood without these, we do not give them. The Court refused a new trial, and that is assigned as error.

W. H. Dabney, W. Akin, D. A. Walker, for plaintiff in error. Evidence necessary to reform deed: Revised Code, *section 3062; 38 Ga. R., 46; 12th, 285. As to specific performance: 27 Ga. R., 275; 3 Vesey, Jr., 420; 29 Ga. R., 166; 12 Ga R., 285-8; 16th, 61; 9, 436. Contract executed cannot be avoided for volunteer: Revised Code, section 3061, 3133; 16 Ga. R., 62; 1 Story\'s Eq. Juris., section 176, 433 and note 3; 2d section, 706a, 793a, 793b, 787, 987; 27 Ga. R., 39; 40th, 15, 16. Possession necessary to complete title: 2 Bl. Conl., 195-6-9; 16 Ga. R., 62; 21st, 370.

C. D. McCutchin, R. J. McCamy, for defendants in error.

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. But this rule is based upon the reasonable 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. But 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...