¶1May 16, 1928. The opinion of the Court was delivered by This action by the plaintiffs against the defendants is a suit in equity to have a deed construed and reformed, and was commenced in the Court of Common Pleas for Florence County by service of summons and complaint September, 1923.
¶2The facts of the case are fully stated in the report of the Master, which will be incorporated in the report of the case.
¶3The decree of his Honor, Judge Shipp, is satisfactory to this Court, and, for the reasons assigned by him, it is the judgment of this Court that the judgment of the Circuit Court be, and is hereby, affirmed.
¶4MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER concur. *538
¶5MR. JUSTICE COTHRAN: I concur in the opinion of Mr. Justice Carter for affirmance of the decree of his Honor, Judge Shipp, and wish to add certain observations.
¶6In the first place, I think that the deed from R.J. Jordan to G.H. Jordan was a voluntary deed, which equity will not reform. Brock v. O'Dell, 44 S.C. 22, 21 S.E., 976.Allgood v. Allgood, 134 S.C. 233; 132 S.E., 48. Jumperv. Lumber Co., 115 S.C. 452; 106 S.E., 473; and authorities cited by Chief Justice McIver in his dissenting opinion in Brock v. O'Dell. The reason for the rule is thus expressed by the great Chief Justice:
¶7"For as I understand it the theory upon which a Court of equity proceeds in affording relief from a mistake is that there was a precedent agreement, the terms of which are imperfectly or inaccurately incorporated in the written instrument sought to be reformed; and equity, looking behind such written instrument, will require the specific performance of such precedent agreement by reforming the written instrument in accordance with the terms of such agreement. In other words, a Court of equity in both cases proceeds upon the same principle; and the rule is undoubtedly well settled that a Court of equity will not decree the specific performance of a purely voluntary agreement, even though under seal" — citing authorities.
¶8See, also, Horry v. Horry, 2 Desuas., 115. Dennis v.Dennis, 4 Rich. Eq., 307.
¶9In this connection I wish to express my disapproval of the principle apparently announced in the opinion of Mr. Justice Fraser in the case of Lawrence v. Clark, 115 S.C. 67;104 S.E., 330, that, while the grantor may resist the reformation of a voluntary deed, the heirs of the grantor cannot. I think that the right of the grantor extends with equal force to his heirs.
¶10But assuming that the deed was upon a valuable consideration, I think that the appellants have failed to establish their contention that R.J. Jordan intended to convey a fee to G. *539 H. Jordan. That intention must be gathered from the whole instrument. If the deed should be reformed by adding the words "and his heirs" after the name of the grantee in the habendum clause, the remainder of that clause, inconsistent with the fee, would, under the case of Glenn v. Jamison,48 S.C. 316; 26 S.E., 677, be rendered nugatory. The grantor's intention to do a certain thing can hardly be established by destroying his express intention to do something else.
¶11The grantor's intention should also clearly appear to dispose of the entire estate. The provision for his daughters, in the event of the death of G.H. Jordan before reaching full age, was not an interest in the land, but in the proceeds of it, not exceeding a named sum. This necessarily indicated a reversion to the grantor's heirs after the life estate to the son, and, besides, there was no disposition of the other half interest in the land.