
    O’CONNOR, Respondent, v. McCABE, Appellant. McCABE, Cross-Complainant and Appellant, v. O'CONNOR et al., Cross-Defendants and Respondents.
    (176 N. W. 43.),
    (File No. 4567.
    Opinion filed January 30, 1920.
    Rehearing denied March 26, 1920.)
    1. Quieting Title — Cross-complaint to Reform Description in Deed Given AVitliout Consideration — Rule Re Heirs of Grantor.
    While, as between a grantor in a deed of realty given without consideration and the grantee, a court of equity will not decree reformation of the deed without consent of both parties, yet, as between grantee and heirs at law of the grantor, after death of grantor, it will interfere to rectify disposition clearly proven to have failed through mistake to carry out the proved intention; this in absence of .proof of any change of intention 'by grantor before his death. So held, where the deed misdescribed the property intended to be conveyed.
    2. Evidence — Reforming Misdiscription in Deed of Deceased Grantor, A’er.sus Heirs — Declaration of Decedent Re Deed, Competency.
    In a suit to quiet title to realty, defendant, grantee, having by cross-complaint sought reformation in description of the deed as against grantor’s heirs, held, that testimony by one of plaintiff heirs, that decedent immediately prior to his death, in response to a question by the priest as to whether he had disposed of his property and settled his worldly affairs, stated “Yes I have left this all in the papers which I have with Mr. Bulow,” being the lawyer in whose hands he had left the deed “until something happened,” should have been admitted in evidence.
    3. Reformation of Instruments — Correcting Mistake in Decedent’s Voluntary Déed, Re Heirs — Case Rikened' to AVill — Equity Powers.
    A court of equity has power to correct a mistake in description in a voluntary deed, after grantor’s death and as against heirs, in a suit by heirs to quiet title with cross-complaint by grantee for such reformation; the case being similar to that of,a will (Sec. 666 Rev. Code 1919), since both such deed and a will are voluntary instruments; and, since in interpretation of a will the principle to be observed is ascertainment of intention of testator, (Rev. Code 1919 Sec. 643), the same principle is applicable in the case at bar; and since in interpretation of a will, that 'one of two modes is preferable which will prevent total intestacy (Rev. Code 1919, Sec. 652), correction of description in a deed should be permitted rather than that the grant should fail.
    
      4. Same — Misdescription in Deed — Grantor’s Intention, dear Intention Re, Evidence Sustaining — Rule .Versus Grantor’s Heirs— Equity Powers.
    While in determining whether a misdescription in a voluntary deed should be reformed, evidence of grantor’s intention should be most clear and convincing, yet when it discloses grantor’s intention and that the mistake in description was purely the scrivener’s clerical error, a court of equity has power, and ought to correct the mistake, especially where it is clear that grantor intended his foster brother, the grantee, should have the farm whose description is sought to be sub- . stituted in the deed, and that his sister should have certain other realty; and the heirs at law have no equitable claim to the property.
    5. Same — Relationship Between Grantor and Grantee, Their Companionship, as Consideration for Deed! — Rule Versus Heirs.
    If it be thought that court should follow precedent, even though contrary to the court’s conception. of law, and declare for this jurisdiction that a voluntary deed may not bei corrected after grantor’s death, against consent of his heirs at law, yet the fact of the virtual relation of the grantor and his foster brother grantee, their long companionship, together with the facts, brought out upon new trial, that grantor’s lawyer was instructed by him not to deliver the deed to grantee until latter had paid all of grantor’s debts except mortgages on the land, including expense of grantor’s last illness and funeral, that the lawyer advised grantee he must do those things before he could get the deed, though not advising him th'at such direction was that of grantor, grantee, believing it merely the direction of the lawyer and iiot knowing until after judgment that it was grantor’s direction, paid all said debts and expenses amounting to more than $1180, after which deed was delivered to him — show a sufficient consideration to take such deed out of the class of voluntary instruments after death of grantor.
    Appeal from Circuit' Court, Union County. Hon. Louis L. ' FijíEGUR, Judge.
    Action by J. C. CFConnor and others against John McCabe, to quiet title to realty; defendant having under a cross'-complaint sought reformation of the description in the deed in question. From a judgment for plaintiffs, and from an order denying a new! trial, defendant and cross-complainant appeals.
    Reversed, and remanded for further proceedings.
    
      Charles Stickney, Fred H. Free, and U. A. Burgess, for Appellant.
    
      Thomas Mclnerny, for Respondent.
    
      (i) To point one of the opinion, Appellant cited: Mason v. Moulden, 58 Ind. x; Appeal of Ferguson, 11 Atl. Rep. 885; Spencer v. Spencer, 75 So. 770.
    Respondent cited: Story Eq. Jur., 'Sec. 987; -Enos v. Stewart (Cal.), 70 Pac.’1005; Shears v. Westover (Mich.), 68 N. W. 266; Dawson v. Dawson, 16 N. C. 101, 18 A.m Dec. 573; Powell v. Powell, 73' A. D. 724.
    (4) To point four, Appellant cited: Hunt v. Rousmaniere, 26 U. S. 1; 7 L. Ed. 1; Rose’s Notes 499; Coleman v.’Colemafi, 153 la. 552, 133 N. W. 758; Parish v. Camplin, 37 N. E. 607; Newland v. Baptist Church, 100 N-. W. 612, 137 Mich. 335.
    (5) To point five, Appellant cited: Smith v. Barksdale, no Ga. 278, 34 S. E. 582; Cummings v. Freer, 26 Mich. 129; Fluke v. Crane (111.), 104 N. E. 690.
   GATES, J.

The undisputed evidence ini this case shows that one Frank O’Connor owner the southeast quarter of. a certain section of land in Union county, S. D.; that it was the only farm, he owned; that in February, 1916, he went to a lawyer and asked him to draw a ’.deed to his farm in favor of defendant John McCabe;. that/by . mistake of the lawyer the description in the deed was made to read the southwest quarter instead of the soxxtheasf quarter of that section; that the deed, reciting the consideration to be $1 and other valuable considerations, was executed and delivered to the lawyer; that the grantor told' the lawyer to^ put the deed in his safe and keep it, and “when anything happened” to grantor to deliver the deed to John McCabe; that at the same time grantor executed a deed to city lots to his sister Katie and delivered the same to the lawyer, which sister is not one of the parties plaintiff; that grantor died intestate in June, 1916, aged about 44 years; that after such death the lawyer discovered the mistake and un-. lawfully corrected the deed accordingly; that the deed was thereafter delivered to John McCabe; that grantee wjas seven years yo’unger than grantor, and that grantee had been adopted by grantor’s parexxts when he was five years of age and resided with them until six years before the trial; that at the time of grantor’s death he and grantee were living together on the farm, both being unmarried, and gi'antee continued in possession of the premises; that grantee never knew of the deed until after grantor’s death and never paid grantor anything for it; that upon presenting the 'deed for record the register of deeds unlawfully 'inserted therein “mortgages of $7,800 of record assumed by the grantee.”

In February, 1917, five of the brothers and sisters of grantor brought this action to quiet title in them to the undivided five^eighths of the farm. The grantee filed an answer to the complaint and also a cross-complaint against all the heirs at law of grantor and sought reformation of the deed. The trial court held that there was no consideration for the deed, and adjudged plaintiffs to be the owner of the undivided five-eighths of the farm-, but made ' no disposition of the issues raised by the cross-complaint. A motion for new trial was made, and it appeared thereon that the lawyer had been instructed by grantor not to deliver the deed to grantee until grantee had paid all of the debts of grantor (except mortgages on the land), including the expenses of grantor’s last illness and funeral; that the lawyer advised grantee that 'he must do those things before he could get the deed, but did not advise him that such direction was the direction of the grantor; that grantee, believing it was merely the direction of the lawyer, and not knowing until after judgment that it was the direction of grantor, paid all the aforesaid debts and expenses, amounting to more than $1,180; and that, after satisfying the lawyer that all such debts and expenses had been paid, the lawyer delivered the deed to grantee. The defendant and cross-complainant appealed from the judgment and order denying a new trial.

It is conceded in the briefs that the trial court decided the cause upon the theory that the grant was without com sideration, and that therefore equity would not reform the instrument. The rule as stated in 23 R. C. L. 344, and as sustained by the great weight of authority, is as follows:

“It is sometimes stated as a general rule that equity will not undertake to reform a conveyance or contract which is merely voluntary and based on no consideration; or, as some authorities state the rule, equity will not reform a voluntary conveyance without the consent of all parties. - But the actual rule, stated with its proper limitations, is that a court of equity will not reform the instrument as the suit of the grantee or those holding- under him, a,s against the grantor or his successors. There being no consideration moving to the grantor, the volunteer has no claim on him. 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. Equity will not, therefore, lend the volunteer its aid.”

See, also, notes to Ann. Cas. 523.

That the above rule is correct as between the grantor and the grantee, we do not question. But ave do question the soundness of the rule as between the grantee and the heirs at law of the grantor. It seems to us that the correct principle was stated in Spencer v. Spencer, 115 Miss. 71, 75 South. 770, where the following- from McMechan v. Warburton [1893-96] Irish Law Reports, 566, was quoted wth approval:

“It was contended by the defendant Warburton that, as this was a voluntary deed, this court cannot interfere to rectify it in favor of volunteers. The elementary principle of this court that it will not interfere to enforce specific performance of an incomplete voluntary agreement, or to rectify an erroneous voluntary disposition of property in favor of a volunteer, is subject to this exception, that after the death of the 'donor i.t will interfere to rectify a disposition which is clearly proved to have, through mistake, failed to carry out the proved intention. The principle is, I think, more correctly stated by confining it to this, that the court will not rectify a voluntary disposition against the donor. That it will do so in favor of a donor is shown by the case of Lackersteen v. Lackersteen, 30 L. J., Ch. (N. S.) 5, where a voluntary settlement was rectified by Wood, V. C., at the instance of the settlor. This explains the new view taken by Romilly, M. R., in Lister v. Hodgson, L. R. 4 Eq. 34, where he stated the exception I have mentioned in case of a deceased donor, that upon clear proof of the intention of the donor, which, by a mistake, was not correctly carried out by the instrument of gift according to such intention, this court will interfere to correct the mistake, and thus act in favor of the intention. If the donor were living, it would have, of course, been competent for him to consent to such rectification or to dissent from it. If the latter, it could not be reformed against his will, for a volunteer must take the gift as he finds it; but after his death, and in the absence of proof of any change of intention, it cannot be assumed that he would have dissented, and it might even be presumed that he would not dissent. In this view Lister v. Hodgson, L. R. 4' Bq¡. 30, is not a deparature from the true principle, and it is certainly an authority for the plaintiffs on this point.”

In the instant case not only does it not appear that there was any change in the intention of the grantor, but the defendant sought to prove affirmatively that there had been no change. He offered to prove by the testimony of one of the plaintiffs in this action that immediately prior to grantor’s death, in response to a question put to him by Father Burke as to whether or not grantor had disposed of his property and settled his worldly affairs, the grantor said: “Yes, I have left this all in the papers which I have with Mr. Bulow.” This evidence should have been received. ,

If a court of equity has not power to correct a mistake of this kind in a voluntary deed after the death of the grantor, why has it power to correct a mistake of this kind in a /will after ¡the death of the testator? If the instrument in question had been a will, the weight of authority, under the particular facts of this case, would have permitted the very correction sought to be made. Notes, 16 L. R. A. 321, 6 L. R. A. (N. &.) 943, and L. R. A. 1915E, 1008. Especially would this have been the case under our section 666, Rev. Code 1919. The one instrument is no more a voluntary instrument than the other, and we can conceive of no sound legal principle which should allow the correction in the one case and not in the other. If in the interpretation of a will the cardinal principle to be observed is the ascertainment of the intention of the testator (Rev. Code 1919, § 643), why should not the same principle be applied in the case at bar ?

If in the interpretation of a will that one of two modes is to be preferred which will prevent total intestacy (Rev. Code 1919, § 652), why should not the correction of the description in the present instrument be permitted rather than that the grant shotild utterly fail?

While in ,sueh case the evidence showing the grantor’s real intention should be most clear and convincing and free from suspicion, yet, when such evidence does disclose the intention and that the mistake was purely the clerical error of the scrivener, we think that a court of equity has power, and ought, t.o correct the mistake. In this case it is clear beyond peradventure that the grantor intended that his foster brother should have the farm and that his sister Katie should have the city property; how, therefore, can it be said that the heirs at law have any equitable claim to the property?

But if it be thought that we should follow precedent even though it be contrary to our conception of the law, and declare for this jurisdiction that a voluntary deed may not be corrected after the death of grantor against the consent of his heirs at law, yet we think the fact of the virtual relation of the grantor and the grantee and their long companionship, and the facts brought out upon the motion for a new trial, showed a sufficient consideration to take this instrument out of the class of voluntary instruments after the death of the grantor. 23 R. C. L. 345, 346; 10 Ann. Cas. 524.

, Upon both grounds we reverse the judgment and order appealed from, and direct that the case be remanded for further proceedings in harmony with this opinion.  