27 Ga. 36 | Ga. | 1859
By the Court.
delivering the opinion.
Was the charge of the Court, right ? The charge was as follows: “That complainant was entitled to have said mistake corrected and the deed reformed, although the consideration was voluntary.”
The deed here meant was doubtless, the deed made by Mrs. Powell to Josiah C. Powell the complainant. The real parties to the question, were this Josiah C. Powell, a child of Mrs. Powell, as plaintiff, and the other children of
The deed by mistake, conveying the half of No. 158, instead of the half of No. 157; the legal title to the half of No. 157, did not by it pass out of Mrs. Powell; and consequently, that title, when she died intestate, was cast by the law, on her heirs.
The question then is, was a Court of Equity authorized to interfere against the legal title thus held by all her heirs, in favor of one of those heirs, claiming b'y a defective voluntary deed ? And the answer, we think, must be, in the negative.
The general principle on this subject, governing Courts of Equity, is, that where the equities are equal, the legal title prevails.
In the present case, if there is any difference in the equities, it is a difference, in favor of the heirs of Mrs. Powell, and against her voluntary donee. It is the dictate of equity and natural justice, that one’s property should be bestowed on one’s children, rather than on strangers; and, on those children, equally, rather than, unequally. This is certainly so, if our statute of distributions be taken as the exponent of what is equity and natural justice; for that makes estates go to the intestate’s children, and puts the children all on an equality. According to this, then, equity would say to Josiah that he ought to be content to stand on the same footing with his brothers and sisters. They in addition, have the legal title. If, then, the general principle is to govern, they must be allowed to prevail over him.
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
In the second place, it is said, that this case is like that of Wyche and Wife vs. Greene, (16 Ga. R.) and, that, in that case, this Court ordered the mistake in the deed to be corrected. But this case is not |like that. In that case, taken, as presented to this Court, the contest was between parties, all of whom, claimed under the very deed sought to be corrected.
According to the bill filed by some of the children, against Mr. Greene, the father, he held under the deed, under which they claimed. That deed, they insisted, was intended to be a deed giving a life estate to Mrs. Greene, and, by consequence, to him, Mr. Greene, and the remainder to her children ; an intention, which they alleged was, by mistake, defeated, so far as the children were concerned, the deed being, by mistake, so expressed as to give the whole interest to Mrs» Greene. Mr. Greene, they insisted, was holding under this very deed. If he was, then, he was bound to let the deed have full effect, whether it was a deed with, or without, a valuable consideration, for it is a principle of law, that he who elects to claim under an instrument, must let the instrument have its full operation. The law will not suffer him, to set up so much of it, as makes in his favor, and reject the rest. By his election to claim under the instrument, he himself gives it validity in all its parts. If Mr. Greene had been claiming by inheritance, through his wife, the case would have been more like the present. The defendants to the present bill, claim as heirs of Mrs. Powell. They do not claim under the deed made by her, to Josiah C. Powell, their •brother.
We see nothing, then, to take the present case out of the general rule, that when the equities are equal, the legal title
New trial granted.