Turner v. Newell , 129 Ga. 89 ( 1907 )

Beck, J.

(After stating the facts.)

1. The question of practice raised by the motion to dismiss is; ruled in the first headnote.

2. But one question made by the record in this case need be? discussed, and that is whether equity will reform a voluntary deei upon proceedings therefor brought by the grantee. And the? principle controlling that question seems to be well settled by the? adjudications of this and other courts, and to be so recognized by text-writers. That principle is set forth in Story’s Eq. Jur., §987-“The general principle is established that in no case whatsoever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract or a covenant or a settlement,, however meritorious may be the consideration, and although they stand in the relation of wife or child;” quoted and applied by the? Supreme Court of Michigan. Shears v. Westover, 110 Mich. 505, 68 N. W. 266, following another case decided by the same court-See also the cases of Wait v. Smith, 92 Ill. 385; Eaton v. Eaton, 15 Wis. 259; Enos v. Stewart (Cal.), 70 Pac. 1005; Gwyer v. Spaulding, 33 Neb. 573, 50 N. W. 681. In the case, of Powell v. Powell, 27 Ga. 36, 73 Am. D. 724, it was said: “Is there anything to take his case out of the general principle? It is-said that there is. It is said in the first place, that the case of a voluntary conveyance in favor of a wife or children is an exception to that principle. But we are not prepared to admit this-proposition. The English decisions seem to be against it. See 1 Stor. Eq. sec. 176, and cases cited; Adams’ Equity, 78.” Jackson, C. J., speaking for the court, in the case of Prater v. Sears, 77 Ga. 28, touching the question of the reformation of a voluntary deed, said, “On the face of the accepted conveyance, it is a mere voluntary deed; on the contract sought to be set up, it is a binding deed for value. The other side to it is dead. If a mere voluntary conveyance, a mistake in it will not be corrected against heirs, which is the case here, nor will a specific performance of it, when corrected, be decreed.”

Counsel for defendant in error insisted, that, as the grantees had gone into possession of the lands the description of which is sought to be corrected and reformed, the contract was executed, and that therefore they are entitled to the relief prayed; and rely upon the case of Wyche v. Green, 16 Ga. 49, in which the court held that “If a voluntary contract, however, be actually executed, then a court of equity will enforce all of the rights growing out of tha contract against anybody.” But a clear distinction is pointed out in Powell v. Powell, supra, between the case of Wyche v. Green and cases like the Powell case and the one at bar. Such a mistake as that alleged in the petition “is a mere failure in a bounty, which, as the grantor was not bound to make, he is not bound to perfect.” Adair v. McDonald, 42 Ga. 506. The fact that the recipients of the bounty had enjoyed the benefits thereof for a period of several years gives them no stronger equitable claim upon the grantor than if they had never enjoyed them at all. If both the grantor and grantees were in the, same position relatively to this as they were when the deed was executed, and the grantor was consenting thereto, we could produce authority for holding that the deed might be reformed and corrected by a court of equity; but before the proceedings were instituted to reform the inRt.rn-mp.-nt in question, a judgment had been obtained by the plaintiff in error against the grantor, which created a lien in favor of the former upon all the property of the latter. For the grantor to consent to the correction and perfection of an incorrect or imperfect voluntary conveyance is an act of liberality or generosity, an act similar in its nature to the bestowal of a bounty. Such an act he is not free to perform, if it tends to interfere with the rights and just demands of a judgment creditor. We find in this salient fact a strong reason for holding that the present case is not entitled to be listed among the exceptions to the general rule that equity will not interfere to reform a voluntary deed becatise of mistake; and the general demurrer invoking the application of that rule should have been sustained.

Judgment reversed.

All the Justices concur.