Lawrence v. Clark , 115 S.C. 67 ( 1920 )

October 12, 1920. The opinion of the Court was delivered by The cardinal facts of this case are really not in dispute. William Gowan conveyed to his son, Simeon Gowan, a tract of land containing 12 1/2 acres. The words of inheritance are to be found only in the warranty clause. Simeon made his will, giving a part of this land to his wife. The wife, in turn, devised the land to the appellants. After the death of Simeon and his wife, the plaintiffs, as heirs at law of William, brought this action for partition, against the appellants. The defendants alleged that William intended to convey a fee to Simeon, and that it was the mistake of the scrivener that omitted the words of inheritance, and asked for a reformation of the deed. The plaintiffs object to the reformation, on the ground that the conveyance to Simeon was a voluntary conveyance and cannot be reformed. The deed was written by G.H. Camp. Mr. Camp testified that William came to him and asked him to draw a deed to Simeon, his son, so that Simeon could sell it and get the money for it; that the omission of the words of inheritance was purely an act of inadvertence on his part. The master found that William intended to convey a fee, but, inasmuch as the conveyance was a voluntary conveyance, there is no power in the Court of equity to reform it, and, therefore, found against the appellants. This finding was affirmed by the Circuit Judge, who heard the case. From this finding this appeal is taken. The consideration as stated in the deed is:

"The consideration of the above lots of land is love and affection I bear my son, the said Simeon Gowan, and five dollars to me paid, the receipt whereof is hereby acknowledged."

In Holder v. Melvin, 106 S.C. at page 252,91 S.E., at page 99, this Court, quoting from Fuller v. Missroon, 35 S.C. 314,14 S.E. 714, says:

"The use of $5 paid by trustee to grantor is in support of this view. While it is true, the only evidence of this payment is in the recital of the deed itself, yet the only person who could gainsay it would be a creditor of the grantor; it would certainly bind his heirs so as to prevent a reverter. A very slight circumstance in the way of consideration, even if it be ``a peppercorn,' our own Courts declare, will be sufficient evidence of intention to carry the whole estate."

There was a valuable consideration in this deed, and the appellants are not volunteers.

The Court might stop here, but it is always better to show that the result of an equity case is sustained by equitable principles and not rest it upon a presumption of law, particularly when we all know that the presumption is probably not borne out by the facts of the case. In this case, in all probability, the $5 was not paid. We know that there are decisions in other jurisdictions that hold that a voluntary deed cannot be reformed at the demand of the grantee over the objection of the grantor, and that the right of the grantor extends to his heirs at law. The authorities are not binding, and we will not follow them, because the reason of the rule does not extend to the heirs at law. The agreement, being without consideration, could not be enforced against the grantor. It was purely a matter of grace on his part. The grantee paid nothing, and it came with bad grace from him to attempt to force a mere courtesy. The grantor was under no obligation to give what is contained in his deed, and he cannot be required to alter the terms of the gift. The heir at law has given nothing. It never was his. The grantee does not even owe him thanks. When a Court orders the reformation of a deed, the reformed deed necessarily speaks as of the date of its original execution. Equity says that the reformed deed is to be considered as the true deed, subject, of course, to the rights of subsequent creditors and purchasers for value, who may have been misled to their injury. When that is done, the heir at law has nothing to relinquish, and never had. No injustice is done to the heir at law. The record shows absolutely no loss to, or equity in, the plaintiffs. The record shows that his father intended to convey a fee, and that by the mere inadvertence of the scrivener the word "heirs" was omitted; that Simeon made his home on a small part of that, and sold the balance as his father intended he should do; that Simeon by will left that portion to his wife as a home, and his wife, in turn, left it to those who had been kind to her and morally were entitled to it. Against this the plaintiffs assert a purely technical legal right, and ask this Court to ignore all legal and equitable rights of Simeon and those who claim under him. This demand is refused, and the judgment appealed from is reversed.

MESSRS. CHIEF JUSTICE GARY and JUSTICE HYDRICK concur.

MR. JUSTICE WATTS. For the reasons assigned by Master Lanham, confirmed by the Circuit Judge, I think the judgment should be affirmed.

MR. JUSTICE GAGE. In my opinion if a voluntary grantee may not have reformation, neither may his privy in estate. But in my opinion the circumstances of the instant case entitled the grantee to have reformation of the deed.

I, therefore, vote for reversal.