1. The instrument held by the court below to be a deed conveying the property in controversy, from Peyton J. Griffin to J esse H. Griffin in trust for John L. Griffin, is in the form of a deed in all respects material to be considered, except that it contains the words: “to take effect from and after the death of the said Peyton J. Griffin and . . from and after the death of my father and mother, and not until then.” It is' also attested as a deed. Whether or not such an instrument is a deed can only be decided in the affirmative, unless we disregard the rulings in the cases of West v. Wright, 115 Ga. 277 (41 S. E. 602), Wynn v. Wynn, 112 Ga. 214 (37 S. E. 378), and Griffith v. Douglas, 120 Ga. 582 (48 S. E. 129), and the authorities there cited. In those cases the question raised upon the construction of the instrument which we have under consideration was, after ample discussion, decided adversely to the contention of the plaintiff in error.
2, 3. A contract is an agreement between the parties to it. A will is no contract at all, but a unilateral disposition of property. A contract or conveyance may be reformed by inserting in it terms left out by fraud, accident, or mistake, or by eliminating terms similarly inserted. And this may be done regardless of its effect upon the validity of the contract when corrected to speak the real agreement of the parties. But it is not a reformation of a contract to let the terms stand as written and merely show that there never was any contract at all, — -as, for instance, that the grantor *195never signed it, or was induced to sign it by fraud, or the like. To have a decree that an instrument is merely invalid as it stands written, the proceeding is for cancellation, not reformation. To merely declare that one who signed a paper intended it to be a will instead of a deed, without changing any of its terms, is not reformation. Here one prayer was that the instrument be reformed, and complaint is made of a refusal to allow time to serve certain parties merely as parties proper for reformation: Aside from the fact that this amendment was. made pending the trial and time asked, the only assignment of error on this subject in the bill of exceptions deals with such parties as necessary for a reformation of the instrument. Also the complaint made in the motion for a new trial, and the contention in the brief of counsel for plaintiff in error in regard to rejecting certain evidence that the maker of the instrument said, in the presence of attesting witnesses, that “he wished them to witness his will, and that the paper which he asked them to witness was his will,” are based entirely on the contention that such evidence was admissible for the purpose of reforming the instrument. Considering the exceptions on this subject as made, they are not well taken.
4. Error is assigned upon the direction by the court of a verdict for the plaintiff in the case; and it is insisted that this order was erroneous on the ground that at the time .of the execution of the deed from Peyton J. Griffin to Jesse H. Griffin in trust for the plaintiff, the former had no interest in the property which he could convey. It appears from the record that the land involved, in this suit had been conveyed by Eentriss to Jesse H. Griffin, the father of Peyton J. Griffin, in trust for the sole and separate use of Elizabeth, the wife of the said Jesse H. Griffin, “for and during her natural life” and “for her sole and separate use, and on her decease to such own child or children as she may leave surviving her, not including the issue of any deceased child or children.” Peyton J. was one of the three children of Jesse H. and Elizabeth Griffin, surviving at her death, and the land was actually divided among them. The death of Elizabeth did not occur until after the execution of the deed from Peyton J. to Jesse H., in trust for John L. Griffin. Under this state of facts, Peyton J. Griffin'had, at the time of the execution of the:deed last referred to, only a contingent remainder in the land sought to be conveyed by that in*196strument. Smith v. Smith, 130 Ga. 532 (61 S. E. 114, 124 Am. St. R. 177). And counsel for plaintiff in error insist that a contingent remainder can not he the subject of a sale and conveyance. To what extent this is true it is unnecessary here to decide; for subsequently to the execution of the deed the event happened upon which the estate of Peyton J. Griffin, the grantor, was contingent, and the expectant estate became a vested one, and this .operated to the benefit of the grantee in the deed, relating back to the time of the grant, if the deed itself at the time of its execution was insufficient to pass title. Parker v. Jones, 57 Ga. 204; Lathrop v. White, 81 Ga. 29 (6 S. E. 834) ; Hill v. O’Bryan, 104 Ga. 137, 142 (30 S. E. 996).
5.The defendant in this action relied upon a deed from Pe,yton J. Griffin, the common grantor of himself and the plaintiff', and insists that -while his deed was executed subsequently to the deed under which the plaintiff claims, he -was an innocent purchaser for value, while the plaintiff took, if at all, under a voluntary conveyance, of which he (the defendant) did not have actual notice. The defendant himself testified: “that he once saw the paper which he claims was Peyton J. Griffin’s will in Judge Beck’s law office, and this -was before he bought the. land from Peyton, but that he did not read it or hear it read; that it was brought down to Judge Beck by Mr. Mills, the stepfather of plaintiff; that he knew about this paper and knew that plaintiff claimed title to the land in dispute by virtue of this paper before he paid any money and took a deed to said land from Peyton J. Griffin.” But the court refused to allow the defendant to testify as follows: “I negotiated with Peyton J. Griffin to buy the land in controversy before the death of Jesse H. Griffin. At that time I had heard there was some paper in existence in reference to the land in dispute, from Peyton J. Griffin in favor of John L. Griffin, the plaintiff, which had been made to Jesse H. Griffin as trustee. I thereupon went to Jesse H. Griffin and inquired about the paper; and he told me that Peyton J. Griffin had made his will in favor of John L. Griffin, but that the same was a sham and was not intended to take effect, and that I could go ahead and purchase the land.” The court erred in refusing to allow the introduction of this testimony. If the deed to the plaintiff was a voluntary conveyance, and the defendant was a bona fide purchaser for value, the deed to the latter *197would prevail as against the former conveyance, if the grantee in the latter was without actual notice at the time of the purchase and taking the conveyance. In the ease of Fleming v. Townsend, 6 Ga. 103 (50 Am. D. 318), Nisbet, J., delivering the opinion of-the court said: “We believe that the notice must be actual, in order to make the conveyance good against him; that is, there must be brought home to him knowledge of the prior conveyance, at the time of purchase. How this shall be done must depend upon the circumstances which attend each case. Whether, in a given case, the purchaser had this knowledge must depend upon the proofs adduced to establish it. Constructive notice-will not do alone; and therefore the registry of a prior deed will not do. However, for many purposes, the record of a deed is notice, we hold that it is not such notice as will make a voluntary conveyance good against a subsequent purchaser for value. The principle upon which a purchaser is not protected, who has notice, is this: Knowing of the existence of a prior deed, he is presumed to be guilty of fraud upon the rights of the prior grantee. Now it is unreasonable to presume a fraudulent intention, from knowledge of a fact, that is itself (the knowledge) a matter of presumption; a matter of mere legal' construction. It will be observed that the question of fraud which arises here is not one of legal fraud, but it is a question of fraud actual. The actual fraud of a subsequent purchaser can not, it seems to me, be established upon the basis of an abstract legal inference, to wit, the inference which the law draws, that when a deed is recorded, the whole world, and therefore the purchaser in question, has knowledge of it. This is a basis altogether too unsubstantial, upon which to rest the property rights of men. Fraud must be in all cases proven; it may be proven by circumstances; it may be presumed from them; but still, it is a general rule that it must be proven. A fraud, in fact, can not be demonstrated by construction.” See also the case of Culbreath v. Martin, 129 Ga. 280 (58 S. E. 832). The evidence rejected by the court should have been admitted for consideration by the jury, in determining the issue as to whether the defendant Isler bought without actual notice, and acted in good faith and without fraud in purchasing the land in controversy.
Judgment reversed.
All the. Justices concur, except Fish, C. J., absent.
AI-generated responses must be verified and are not legal advice.
