By the Court.
Lumpkin, J.delivering the opinion.
The plaintiff in error filed a bill against Thomas B. Greene ■and Elias McElvin, as administrator of Batt Wyche, deceased, for the purpose of having a deed of gift reformed, on the ground •of mistake in drafting the same.
The bill, as it stood originally, was to the effect, that Thomas B. Greene’s deceased wife, Patience O. was the daughter of Batt Wyche of Montgomery county; that Thomas B. Greene intermarried with his wife in 1814, and by her, had a numerous •family of children, of whom Adeline, the wife of Thomas T. Wyche, the complainant,.was one; that in 1814, Batt Wyche entertained a wish and design to secure to his daughter Patience, for life, and to her children, at her death, four negro slaves : Sally, Moses, Elliek and Sealy, with all their increase; •that to accomplish this object, he procured one J. G. Conner or some other draftsman, to draw a deed of gift, a copy of which is annexed to the bill, as part thereof; that said deed of gift was executed by Batt Wyche in 1817, and by him delivered to Thomas B. Greene ; and that the said Thomas B. received the same, to be held,, together with said negroes and their in■crease, for the benefit of the said Patience C. and her children; *55and that he did so hold and keep said deed of gift, till afterBatt’Wyche’s death.
The bill further'states, .that the draftsman made a mistake-‘in' drawing said deed of gift in this : that said deed conveys the title of said negroes and their increase, to said Patience C. and issue, when, in truth, at the time of preparing, executing and delivering said deed, it was said Batt’s instruction and direction to convoy said negroes to the said Patience, for her lifetime only; and at her death, in fee-simple to her children; and that up to his death, Batt Wyche thought said deed so conveyed said negroes; and that Greene, at the time of receiving, and while ho held the same, had notice that such was the nature and design of the conveyance.
The following indorsement was on the back of the deed : “ I make an addition to the within deed, of five hundred dollars, in place of a small negro and other things. Given under my hand, this 6th day of October, 1817, to be paid next fall. ■
BATT WYCHE.”
The deed was duly recorded in the Clerk’s office of th<^ Superior Court of Montgomery county, on the 27th day of May,, 1817.
Thomas B. Greene kept the deed till 1824, and then delivered it to George Wyche, administrator of Batt Wyche, among whose papers it was found in 1850 or 1851.
The bill prayed that the alleged mistake might be corrected,, and the instrument reformed, according to the true intent and meaning of the parties. It also prayed an injunction, to restrain a trover action then pending between the parties. -Upon-being presented to Judge Starke, he refused to sanction the bill, for various reasons; to which decision and refusal, complainants, by their Counsel, excepted. And the cause was-then brought before this Court, upon writ of error. After sol ■ emn argument, this Court reversed the judgment gf the Circuit Judge, holding, that assuming the facts charged in the bill to be true, that the deed of gift from Batt Wyche to Greene and' wife, did not contain the actual agreement between the parties y that it was not what they intended it should be, and thought it *56was; that the draftsman, by mistake, either as to fact or as to* law, drew a different contract from the one contemplated by the donor, and understood and accepted by the donee; and that consequently, Equity ought to interpose and compel the parties to execute their true agreement, and not that which, was reduced to writing; that while Chancery had no power to-make contracts for parties, or to substitute one for another, it. could and would decree, that they should reform those which they had actually made ; and if the paper does not fulfil or violates their understanding, it will be rectified and made to conform to it. (11 Ga. R. 171.)
The bill having been sanctioned and filed, under the order of this Court, the defendant, Greene, answered the same; and the case standing for trial, the complainants discovered their inability to make out, by proof, such a case of mistake as that set forth in the bill, they obtained leave to amend their bill, so as to make it correspond with the proof. And by the bill, as amended, the averment is not that Batt Wyche procured one J. G. Conner or other person to draw the deed, but that he drew it himself; that he was not skilled in framing such instruments, and that it was his intention so to have drawn the same, as to> vest a life-estate in Mrs. Greene, and the fee in remainder, in her children ; and that by mistake,, in the use of words not proper and technical, the intention of Batt Wyche failed to be legally expressed. And instead o^alleging that it was the instructions and directions of Batt Wyche, that the deed should be drawn in a particular way, the bill charges that it was the intention of Batt Wyche, himself, so to have framed it.
To the amended bill Greene demurred, McElvin not having been served with a copy of the amendment; and he insists, that by the amendment, the character of the bill is wholly changed; that, as originally brought, it presented a case of' mistake, in fact, for which it asked relief; that now, it made a case only of ignorance or mistake of law, for which Equity could grant no aid.
•The demurrey was sustained by Judge Starke and the bill-*57dismissed. The complainants, by their Solicitors, excepted; and thus, the case comes again before this Court for revision.
We concur with Counsel for Mr., Greene, that the sole question presented by the record and bill of exceptions is, whether the bill, as amended, presents such a case of mistake and error in the drawing of tho deed of gift, from Batí Wyche to his daughter, as to entitle tho complainants to a decree in Chancery, against tho defendant, Greene, directing said conveyance to be rectified as prayed for by the bill.
If the judgment of the Court upon the case, a3 originally made, was right, then-wo are clear that the judgment of the Court below, upon the deinurrc-r filed to the amended bill, was wrong.
It is to be deeply regretted, that there is so much confusion and uncertainty, as it respects this important branch of Equity jurisdiction. Judge ¡Story admits that the English Elementary Writers treat the subject in a very loose and unsatisfactory manner, laying down no distinct rules, when mistakes of the Law are or are not relicvable in Equity, but contenting Ihemselvos, for the most part, with mere statements of the cases. Whether the same criticism does not apply, to some extent at least, to the learned Commentator himself, as well as to Mad-dock, Jeremy, Cooper, Tonblanque, Mitford, Kewland, and those who had preceded him, no one, 1 think, will doubt, who has read his 5th Chapter, Volume 1. Title Mistake.
All writers on Equity lay down the rule, that mere ignorance of the law, is no sufficient ground for rectifying a contract; yet, they state so many exceptions, that tho rule is utterly smothered and-lost sightpf. It is, to my mind, highly desirable that +he Courts would hold, if they have the power; and if not, that the Legislature would enact, with Lord King, in Lansdowne vs. Lansdowne, (Mosely, 364,) that the maxim, ignorance of the law-will not? excuse, applies only to criminal cases, -and not-tfi'civil • contracts-;' orth’at no mistake of law, whatever, should be corrected. Like Mr. Calhoun’s and Mr. *58Webster’s antipodal interpretations of the Federal Constitution,, either would be intelligible, while all between is terra incognitaif
By .way of testing the sufficiency of. the present bill, as amended, let us briefly examine some of the doctrines maintained by standard authors and eminent Judges, upon this subject. ■
[1.] By reference ,to Epencer’s Equitable Jurisdiction, (1 Volume, 633, note l,) it will be found that the interposition of a Court of Chancery, to correct mistakes, both as to law and fact, by ordering a proper deed to be executed, according to the true intent of the parties, was a doctrine of very - ancient, as well as familiar occtírrénce. ■ One of the.old Chancellors, Btillington, Bishop of Bath and Wells, in the time of Edward IV. put it upon what seems to have been a favorite maxim, with him, namely:' Ecus est procurator faiuorum — which, as I understand itj means that God is the supervisor or guardian of fools: that is, intervenes to save those from their own errors, who arc incapable of taking care of themselves. And therefore, Courts of Conscience, His vice-regents, will perform the same office.
[2.j The case of Lansdowne vs. Lansdowne, I know has been often questioned and doubted; and yet, in McCaithy vs. Decaise, (2 Russ. & Mylne, 614,) Lord Brougham held, that where a husband renounced his title to his wife’s property, from whom he liad been divorced, under a mistake in point of law, that the divorce was valid, and he had no longer any title to her property: and under a mistake of fact as to the amount of the property renounced, the information respecting which the other party knew and withheld.from him, he was entitled,' to relief. Judge Story -suggests that the relief in this case seems to have been granted upon mixed considerations. But his Lordship, in one part of his opinion, said — (‘what he (the husband) has done, was in ignorance of law — -possibly of fact ;■ but in cases of this kind, that tvo'uld be one and the same ■ thing”.
I submit, respectfully, that'this Opinion indorses, fully, that of Lord King, in Lansdowne vs. Lansdowne, and which I believe, myself, to have been a most righteous and legal judgment, whether viewed as a case Of misrepresentation of a fact,*59that the party was not heir, when, in fact, he was heir, or mere ignorance or mistake of the law, as to his true status, in relation to the estate of his deceased uncle. ' ■ .
[3.] Indeed, the English Books abound in cases where Equity has granted relief to parties, against bargains and agreements, made under a misconception of their rights'. Bingham vs. Bingham, (1 Ves. Sr. 126.) Cocking vs. Pratt, (Ib. 400.)
Hunt vs. The Administrator of Reusmarriere, is a loading .precedent in this country, upon this doctrine; it has never been over-ruled or shaken; indeed, it has been pretty generally followed, by most of the State Courts throughout the Union. It was four times elaborately argued and thoroughly considered, twice before the Circuit and twice before the Supreme Court. Chief Justice Marshall delivered the opinion of the Court, upon the first hearing, at Washington, from which we extract the following sentences : “ although wo do not find the naked principle, that relief may he granted on account of the ignorance of the law, asserted in the Books, wo find no case in which it has been decided, that a plain and acknowledged mistake is beyond the reach of Equity”. And the decree concludes thus: “ and we are unwilling, where the effect of the instrument is acknowledged to have been entirely mistaken by both parties, to say that a Court of Equity is incapable of affording relief”. (8 Wheaton, 174.) And in the final opinion, delivered by Judge Washington, in this ease, it is laid down as an incontrovertible principle, that “ wherever an instrument, which purports to set out the contract, violates by omissions or insertions, the manifest intention of the parties to tho agreement, Equity will correct the mistake, so as to produce a conformity in the instrument to the agreement”., And the learned Judge assigns this obvious and most sensible reason for the rule : “the object of Courts is, to carry out the contracts of parties, fairly and legally entered into; and if the instrument, from want of skill or mistake, or for any other cause, is insufficient to execute the intention of the parties, the writing, itself, might be enforced, but the agreement, itself, would remain-*60as'unexecuted — as if one of the parties had refused, altogether, to comply with his agreement; and a Court of Equity will, in the exercise of its acknowledged jurisdiction, afford relief, as well in one caso as in the other, by compelling the delinquent party, fully to perform his agreement according to the terms of it, and the manifest intention of the /parties”. (1 Peter’s S. C. R. 1, 14.)
It may be suggested that this was the mere obiter of the individual Justice. It will be borne in mind, however, that every opinion emanating from the Supreme Court of the United States, undergoes the revision and approval of the whole Bench. And I have.learned from a reliable source, that a large portion of what is now considered as settled law in that tribunal, originated in dicta, similar to this which I have cited. The principle then, thus enunciated as incontrovertible, comes clothed with the moral, if not the legal sanction of a judgment.
Counsel for the defendant in error, profess their willingness to stand or fall by the doctrine, as taught by Judge Story in his Commentaries on Equity. And they insist on binding us by that authority. To that, then, let ns go.
In his jFifth Chapter, on Mistake, he commences by expounding the well-known maxim, that ignorance of law will not furnish an excuse for any person, either for a breach or an omission of duty. He then proceeds to state numerous exceptions to the rule, until he reaches the 136í7í Section, where the author thus continues: “there are also some other cases, in which relief has been granted in Equity, apparently upon the ground of mistake of law. But they will be found, upon examination, rather to be cases” — of what? — “defective execution of the intent of the parties, from ignorance of law, as to the proper mode of framing the instrument”.
Now, I ask, is not the case made by the amended bill, in literal conformity to the very language of the learned commentator ? Indeed, I should infer that the pleader, in framing this amendm n , did it with this identical paragraph before his eyes. If the text in this treatise, as just quoted, is the law of this case, *61and we hold that it is, then is there Equity in this amended bill.
But it is earnestly and ably argued, that there is a wide difference between the reformation of a contract, drawn by a scrivener, under instructions from the maker, and the correction of a paper, framed by the party himself. We confess, candidly, that we are unable to comprehend the distinction. That the proof will be more difficult in the one case than the other, I can readily perceive.
But I direct a scrivener to prepare an instrument for a certain purpose. It is read to, or by me, executed raid delivered. A mistake, here, it is conceded, is relievable.,- Yv hat difference can it make, if I, myself, have drawn the contract ? In the latter case, I repeat, it may be more difficult to prove that the defective execution of the intent of the party, was the result of ignorance of the law, but in principle, the two cases occupy the same footing. Neither Judges Marshall or Washington, Judge Story, or any one else, who has discussed or adjudicated this question, recognize any such distinction as that now made, viz: whether the instrument was framed by the party, himself, and some third person. And this is the only change made in the original bill, by the amendment.
Now, I grant, that if the bill charged, that owing to the confidence of the party in the scrivener, he omitted to scrutinize the instrument closely, this would constitute an independent ground of Equity: otherwise, it is immaterial whether the party, himself, or another, be the draftsman. The doctrine rests on no such distinction.
[4.] In every case, under this head of the Law, the only inquiry is, does the instrument contain what the parties intended it should, and understood that it did? Is it their agreement? If not, then it may be reformed by aliunde proof, so as to make it the evidence of what was the true bargain, or contract, between the parties. And it is wholly immaterial, from what cause the defective execution of the intent of the parties originated.
But another ground has been argued against the maintenance *62of this bill. Whether it was taken in the Court below, the record does not disclose.
[5.] We are daily impressed with the difficulties under ■which wo labor, and the increase of work in which we are involved, in having questions upon demurrers, amendments to pleadings, &c. brought up for review before this Court, which have not been distinctly presented to and actually passed upon, -by the Superior Court. It is a growing 'evil, and- one which ought to be corrected. The Court-of Errors, in New York, stood in the same" relation to the Supremo Court and Court of Chancery in that State, that this Court does to the Superior Courts here. • And the Organic Law, creating these appellate tribunals, was very similar. And it was repeatedly decided and considered settled law there, that no matters assigned for error, would be heard, except such as were actually passed upon by the Court below. (The President, &c. of the Bank of Utica vs. Smedes, 3 Cowen, 662, 684; Colden vs. Knickerbocker, 2 Ib. 49, 50; Gelston, &c. Al. vs. Hoyt, 13 Johns. Rep. 561; Wood vs. Young, 5 Wend. 637; Campbell, adm’r, &c. vs. Stokes, 2 Wend. 146, Per Walworth, Chancellor; Houghton vs. Starr, adm’r, &c. 4 Wend. 179; Ward vs. Lee, 13 Wend. 41.)
[6.] But waiving this for the present at least, lot us consider this second objection! It is contended, that the conveyance from old man Wyche being voluntary, that. Equity will not enforce, that Greene and the complainant are both volunteers; Vand that between such, Equity will not generally interfere, but leave the parties, as to - title, where it finds them ; that ¡it will not aid one. volunteer against another; neither will it-'enforce a voluntary contract.
[7.] To this rule, there is an important qualification. If the ■contract is actually executed, then a Court of Equity will enforce all-the rights growing out of the contract, against any ■body. Here, the gift having been consummated by the donor, ■by the delivery of the title-paper, together with the negroes, it would be enforced against him and all others, in favor of all *63who have rights growing out of it. See 1 Story’s Eq. Jur. § 483, and note 3.
And is not this right? In the apparent conflict of Courts and cases, it is always well, to let conscience speak. Now Mr. Greene having taken the instrument, with notice, and, therefore, knowledge, that it was designed to give the slaves, and their increase, to his wife for life, and after her death, to her children, would it be just that he should hold on to the remainder, and refuse to surrender it up, after the termination of the life-estate, by the death of Mrs. Greene ?
Rectify this instrument, and there is no conflict between the titles of these parties to this property. One took an estate for life: the other the remainder in fee. The one having taken effect, and been fully enjoyed, shall not the defendant be adjudged a trustee, holding for the benefit of his children ?
[8.] Wo are aware that the difficulty of supporting his case, by proof, will be great. The testimony, under all the circumstances, should be overpowering; not only on account of the antiquity of the transaction, but likewise, because Mr. Wyche, himself, penned the paper. The Jury must be satisfied, beyond a reasonable doubt, that. at that very point of time, his purpose was to frame the instrument, otherwise than as he did. This will be hard to do — still, it will not bo impossible. And the complainants are entitled to the privilege of making the effort. If they fail, it will be for want of evidence, and not because they are denied the opportunity of adducing it. Their miscarriage will then bo their misfortune, and not the fault of the Courts.