April 22, 1913 The opinion of the Court was delivered by This was an action to re-form a deed. The complaint alleges, that heretofore, to wit, on or about the 5th day of October, 1868, one Charles McAllister, being then the owner thereof, executed and delivered to E. T. Moody his certain deed whereby he conveyed, in consideration of the sum of five hundred dollars, a certain tract of land in Williamsburg county containing fifteen acres (describing the land). That at the time of the conveyance above mentioned, the sum of five hundred dollars was the full and fair value of the absolute title of said Chas. McAllister without any limitation or reservations. That, as plaintiff is informed and believes, the said Chas. McAllister and the said E.T. Moody both, at the time, understood that said E.T. Moody was receiving a conveyance, in fee simple, without reservation or limitation and the said E.T. Moody paid the consideration mentioned in the deed with this understanding; *Page 351 but that, on account of an error in the preparation of the deed of conveyance (which was prepared by a party not skilled in such matters) and such deed was so formed as to convey, as plaintiff is informed and believes, a life estate only to the said E.T. Moody. That thereafter, by a succession of conveyances, the land was conveyed to the plaintiff. That Charles McAllister died in 1876; that the defendants are his heirs at law and the heirs of the heirs who are now dead. The complaint prays for a re-formation of said deed and that she be declared the owner of said land.
Some of the defendants answered denying the allegations as to a mistake in the deed and set up laches, etc. It was referred to a referee to take the testimony. The trial was had before his Honor, Judge Prince, who, in a very strong and elaborate decree, found as follows:
"Without prolonging the discussion to greater length, it is sufficient to say that a careful consideration of all the facts established by the testimony fails to satisfy me that there was a contract between McAllister and Moody whereby the former agreed to convey to the latter a fee simple estate in the property in question, and that through mistake the deed which was executed by McAllister failed to express that contract."
E.P. Moody was offered as a witness. Moody had warranted the title, but during the taking of the testimony, after he had testified, he was given a release under his warranty and he went back on the stand and reaffirmed his statements. His Honor ruled out the testimony of Moody and held that the plaintiff was guilty of laches and that the claim was stale. In the view that this Court takes of this case it will only be necessary to consider the ninth exception and we will consider that exception as raising the initial question in this case and in its consideration will consider the testimony of Moody.
Has the plaintiff shown that the deed from McAllister to Moody does not contain the contract between the parties? *Page 352
There must be a meeting of two minds in order to make a contract. The complaint recognizes this and alleges that both Charles McAllister and Moody understood that E.T. Moody was receiving a conveyance in fee simple.
Moody testified that he married a granddaughter of Charles McAllister. That he rented the land in dispute from him at six dollars per month. That W.G. McAllister, a son of Charles and the uncle of Moody's wife, suggested to him that he buy the place and that he talk to Charles about it. That he (Moody) went to see him (Charles) and the old man talked favorably about the sale. That some time afterwards he saw W.G. McAllister again and told him that the old gentleman had talked favorably about it. That W.G. McAllister told him that he (W.G.) would see his father and try to get the deed for him (Moody). That six months afterwards he was given the deed by W.G. McAllister and executed the notes for the purchase money. W.G. McAllister is also dead. All that is known of Charles McAllister afterwards is that he collected some of the notes and lived in that community until 1876. There is no word of direct evidence to show whatCharles McAllister intended by the conveyance. It is said, however, that Charles McAllister lived close by and could have seen Moody cut down the timber and there is no evidence of his objection. That is true, but Moody testified that the timber was "very poor. It had been culled over and it had pretty well all been burnt over."
It is said that the deed was drawn by W.G. McAllister and he was not skilled in such matters. That is true, but in 1872 Moody sold the land to M.L. Jones. This deed is also said to have been written by W.G. McAllister and conveys a fee and a warranty that is significant. Judge Prince thinks that that warranty indicates a doubt as to the sufficiency of the title. In this we can not say he was in error. W.G. McAllister used the word "heirs" in 1872 and used it in an inartificial conveyance. Charles McAllister was then *Page 353 alive and in that community. If the deed did not convey what he intended to convey and what Moody intended to purchase, that was the time to correct the mistake. But it is said Moody paid full price for a fee and that entitles him to a conveyance in fee. Full price standing alone has never been held to be conclusive that it was the intention to convey a fee. If a full price is sufficient of itself to carry a fee after the death of the grantor, then a small price after the death of the grantee ought to cut down a fee to a life estate or a term of years. That would be a very dangerous doctrine in this State, where land values are rapidly increasing. That is not the law and we have not been referred to any case that so holds. The witnesses are not agreed as to whether it was full price or no. Moody paid five hundred dollars for land with a dwelling house on it which rented for more than seven per cent. on one thousand dollars.
It is said Charles McAllister did not make any objection to the sale to M.L. Jones. There is no evidence of any objection, but he had no right to object as long as Moody lived. Moody lived until this case was nearly ready for a hearing before Judge Prince and testified in the case. This Court can not find any evidence to contradict the plain import of the deed. There is no evidence that Charles McAllister contracted to convey a fee, and none that even Mr. Moody stipulated for a fee. There was conflicting evidence as to what Mr. Moody thought he was getting. It will be observed that the plaintiff claims that the deed does not convey a fee it simple, but a life estate and in the failure to convey a fee it failed to express the contract between the parties. The action is to re-form the deed. The plaintiff proved that there was no contract except the deed and thereby failed utterly to prove the essential fact necessary to re-form the deed.
This Court holds that the appellant has failed to prove the contract set up in the complaint. The testimony, though formally ruled out by Judge Prince, has been considered by *Page 354 this Court, as it is all in the record. It would not have affected the result, and the error, if any, is immaterial. It was not error. The statute of this State excludes the testimony where it "can in any manner affect the interest of such witness or the interest previously ownedor represented by him."
What a travesty it would be to put a witness on the stand and allow him to state things that will relieve him from liability, then release him from liability and put him back on the stand and ask him if the things to which he has just sworn are true or false. Our statute prevents just that thing. There was no error in ruling out the testimony of E.T. Moody.
As this Court has held that the appellant has failed to establish the contract, the other questions do not arise.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.