dissenting. I regret to say that I am unable to concur in the conclusion reached in the opinion prepared by Mr. Justice McGowan. I propose, therefore, to indicate briefly the grounds of my dissent, as want of time forbids anything like an extended discussion of the questions involved.
It seems to me clear that the paper set up by respondpnts as a deed is fatally defective, as lacking one of the statutory requirements — two subscribing witnesses — necessary to the validity of such a paper. I do not see how Greer can, under any proper view of the matter, be regarded as such a subscribing witness as *208is contemplated by the statute. At the time the paper was signed he certainly was not called upon to act as a subscribing witness, nor did he put his name to the paper until after the death of the alleged grantor. He was a mere by-stander, a casual observer, along with several others, and when examined as a witness in this case he said: “I did not see the parties sign, seal, and deliver the deed. Saw them sign some paper, but don’t know that this is the paper. Saw them sign a paper when Mr. C. Bolt was there. I wasn’t in the house : was standing in the door. Don’t know as I saw them sign but one paper when Mr. Bolt was there. Never saw them sign but one paper when Mr. Bolt was there; this must be the paper.” When he was asked by T. J. Young, the nominal grantee, after the death of the alleged grantor, to sign the deed as a subscribing witness, he says: “I just signed the deed to accommodate T. J. Young; thought there would be no hereafter about it; didn’t pay much attention to it.”
It seems to me that it would be a perversion of terms to characterize this witness as such a subscribing witness as is required by the statute. One of the objects of requiring subscribing witnesses is to identify the paper, and here it is manifest that the witness, Greer, could not identify the paper which he saw signed with the paper which he signed as a witness, except by a process of reasoning, which, to say the least of it, is not very satisfactory' when we see from the testimony that he was not called upon to pay any attention to what was going on, and when he did not, in fact, do so, “wasn’t in the house; was standing in the door,” evidently not'expected or expecting to act as a witness, and therefore not observing what waa going on. Hence he very properly testifies that while he saw some paper signed, he could not say that it was the paper offered as a deed in this case; and the fact which he adds, that he “never saw them sign but one paper when Mr. Bolt was there,” is very far from proving that there was no other paper signed.
But, in addition to this, the undisputed testimony is that Greer never put his name to the paper until after the death of the alleged grantor, and in this respect the case differs very materially from the case of Pope v. Montgomery (24 S. C., 594), where, however, the point was not decided. There the' alleged *209deed, after having been signed by the grantor in the presence of a single subscribing witness, was afterwards acknowleged by the grantor, in the presence of the same witness and another, who then subscribed his name as a witness; while here the second witness never subscribed his name as such until after the death of the alleged grantor. So that even assuming that a paper executed in the manner described in Pope v. Montgomery, would become a valid deed from the time it was signed by the second witness, and acknowledged by the grantor in his presence, and in the presence of the other subscribing witness, it does not by any means follow that a paper signed as the one here in question was,, would become a valid deed. It certainly was not such at the-time of the death of the alleged grantor, for it was then signed by only one subscribing witness, and it is not easy to perceive how it could acquire the qualities of a valid deed after his death, and certainly not by the act of the nominal grantee in procuring another person to sign as a subscribing witness.
But it is urged, that even supposing that the paper propounded as a deed was invalid as such, yet equity, regarding it as an agreement to convey will enforce such agreement and practically give it the effect of a conveyance, or that it will correct the mistake made by the omission of, what is termed, one of the necessary formalities. I do not understand distinctly upon which of these grounds it is proposed to rest the decision. If the latter, then it seems to me there is an utter lack of any testimony to support it. The Circuit Judge, in his decree, does say that “from some oversight Mr. Bolt alone subscribed the deed as a witness,” and, in the opinion of the majority of this court, the omission of one of the witnesses to sign is spoken of as an “accidental omission”; but I am unable to discover any testimony even tending to show that such omission was the result of either oversight or accident. On the contrary, the testimony tends to show that what was done, was done deliberately and purposely, and that nothing was omitted which was intended to be done. The testimony fails to show the slightest reason to suppose that the parties ever intended to have two subscribing witnesses, and that such intention was frustrated by any sudden change in the condition of the alleged grantor, then lying upon what proved to be his death-bed, *210or any other circumstance. There was no lack of persons present to act as subscribing witnesses, if an additional one was wanted, and it is difficult to conceive of any reason for the omission, except that it was not deemed necessary. The fact that the paper was formally acknowledged by the parties in writing before a notary public, tends to show that the parties regarded that as a sufficient mode of authenticating the paper, and hence they did not deem it necessary to have, and did not intend to have, two subscribing witnesses. The omission clearly was the result of ignorance of the law' merely, and was not the result of any mistake or accident, and hence the second ground upon which it is proposed to uphold the paper as a deed cannot be sustained.
More reliance, however, seems to be placed upon the first ground — that equity will regard the paper as a valid agreement to convey, and give it the effect of a conveyance. This depends, in my judgment, upon the result of the inquiry whether the agreement is voluntary or is based upon a valuable consideration. I understand the rule to be that equity will not require the specific performance of a merely voluntary agreement, but that it will do so where the agreement is based upon a valuable consideration, provided certain conditions exist which need not here be adverted to. The Circuit Judge cites 1 Story Eq. Jur., §§ 165, 166, and 1 Fonbl. Eq , Bk. 1, Ch. 1, § 7, to show that in equity “a deed upon a merely good consideration, though subscribed by but one witness, will be sustained, as between the parties or their privies in blood.” An examination of these authorities will show that the expression “good consideration,” is not used in contradistinction to, but as identical with, valuable consideration. The expression is not used in either of the sections cited from Story, but it is used in the section cited from Fonblanque as follows: “Equity regards not the outward form, but the inward substance of the matter, w'hich is. the agreement of the parties upon a good and valuable consideration.” And in a note to this passage the following language is found: “Though equity will relieve by supplying the defects of a conveyance upon a good or valuable consideration, yet it will not, if the conveyance be purely voluntary.” This shows that the expression “good consideration” is not used *211in contradistinction to “valuable consideration,” but simply means a consideration good in law.
That this was the view of Mr. Justice Story may be seen by numerous passages in his great work. In section 176, he says: “But in all these cases of relief by aiding and correcting defects or mistakes in the execution of instruments and powers, the party asking relief must stand upon some equity, superior to that of the party against whom he asks it. If the equities are equal, a Court of Equity is silent and passive. Thus equity will not relieve one person, claiming under a voluntary defective conveyance, against another, claiming also under a voluntary conveyance, but will leave the parties to their rights at law.” Again, in section 798a, this writer says: “We have already had occasion to remark, throughout the whole of the preceding discussion, respecting bills for specific performance of contracts, that it has been constantly supposed that the contract tvas one founded upon a valuable consideration in the contemplation of law. In respect to voluntary contracts, or such as are not founded in a valuable consideration, we have already had occasion to state that Courts of Equity do not interfere to enforce them, either as against the party himself, or as against other volunteers claiming under him. Thus, for example, if a party should enter into a voluntary agreement * * to convey * * * certain real estate Courts of Equity would not assist in enforcing the agreement, either against the party entering into the agreement or against his personal representatives, for the party contracted with is a mere volunteer. The same rule is applied to imperfect gifts * * * and to voluntary defective conveyances.” See also the various sections therein cited.
It seems to me clear, therefore, that unless the paper propounded as a deed, under which respondents claim, was founded on a valuable consideration, it cannot be given, even in equity, the effect of a conveyance. Whether there was such valuable consideration is a question of fact upon which the master and the Circuit Judge differ. It appears to me, after a careful examination of the evidence, that there is but little, if any, testimony to show that the alleged deed was founded upon a valuable consideration, and, therefore, I think the conclusion of the master rather tha,n that of the Circuit Judge should be adopted. The eon*212sideration claimed as the foundation of the deed 'is of a twofold character. 1st. The services alleged to have been rendered to the deceased, John H. Young, by the defendant, Amanda M. Young, in his life time. 2nd. The alleged agreement of the defendant, Thomas J. Young, to pay the debts of the deceased.
As to the first, after striking out the testimony of Amanda M. Young as to her transactions with the deceased, which was not only clearly incompetent, under section 400 of the Code, but was ruled so to be both by the master and the Circuit Judge, it is manifest that there is not a shadow of testimony tending to show that Mrs. Young had any such claim against deceased for services rendered, as would constitute a valuable consideration for the deed. The testimony of Bolt, when he was re-called, so far from supporting this view, tends the other way. He says that “when I drew up the paper, J. H. Young spoke of the kindness of Mrs. A. M. Young, and said he did not know how he could have got on without her. * * * He spoke very gratefully of Mrs. A. M. Young’s kindness.” Now, there is not only a significant absence of anything in this testimony tending to show that J. H. Young either expected or intended to pay for this kindness, but, on the contrary, the language used much more naturally conveys the idea that he was thankful for this gratuitous service. People do not usually characterize services rendered for pay as a kindness, which calls for expressions of gratitude. It seems to me that the testimony shows that such services as were rendered the deceased by Mrs. Young were prompted by a feeling of kindness for her husband’s afflicted brother, and without any expectation or intention on the part of either that they should be paid for; and, therefore, however commendable it may have been on the part of Mrs. Young thus to administer to the wants of one so closely connected Avith her, and living in the house Avith her, it affords no foundation for any such legal claim as Avould constitute a valuable consideration for the deed. That Avhich was intended as a gratuity cannot aftenvards be converted into a charge.
The second ground upon Avhich it is urged that there was a valuable consideration for the deed, is the alleged agreement on the part of Thomas J. Young with J. H. Young to pay the debts of the latter. This is also without the slightest foundation in the evi*213clenee, after the testimony of Thomas J. Young, which was clearly incompetent, as to.this point, and ruled so to be, is stricken out. Bolt, the witness who drew the paper, and who would most naturally know what occurred, does not speak of any such agreement. Nothing of the kind is inserted-in the alleged deed, and Bolt says that he drew the paper “in accordance with his wishes and desires.” This witness, when recalled a second time, says that he told deceased a deed of gift would not hold good as long as he owed debts, ‘.'and he.said that T. J. Young would, of course, have them to pay. * * * I mean by the deed of gift the deed I drew up and witnessed.”
Now, this testimony not only shows that the deceased never made any allusion to the payment of his debts until his attention was directed to it by the witness, but it also shows that the paper was intended and understood to be a deed of gift, and was so designated at the time of its execution, and the further statement that such a paper would not hold good until the debts were paid, only goes to confirm my view that the paper in question was not, in fact, based upon a valuable consideration, and was not intended to be so, but was intended to be just what it was called at the time — a deed of gift — and the advice given by the scrivener that it would not hold good until the debts were paid, while, to a certain extent, very appropriate to a deed of gift, would have been wholly inapplicable to a deed based upon a valuable consideration. For if the deed had been properly executed, and was voluntary, while it would not have been good as against the creditors as long as the debts were unpaid, it would have been good as between the parties and their heirs ; whereas if the deed had been founded upon a valuable consideration, it would have been good against creditors as well as heirs.
Again,' it is urged that even if there was no valuable consideration at the time the deed was executed, yet there was a subsequent valuable consideration in the actual payment of the debts of J. H. Young by T. J. Young subsequent to the death of the former, which w'ould be sufficient to support the deed even against creditors : and the case of Bank v. Brown, 2 Hill Ch., 558, is cited to sustain that view. In that case a husband, while in debt, made a deed, in form voluntary, settling on his wife certain *214property. The husband was at the time negotiating the sale of certain real estate acquired by his wife, which sale was afterwards made. Upon a bill by the creditors of the husband to set aside the deed of settlement as voluntary, parol evidence was received to show that the real consideration of the deed of settlement was the renunciation by the wife of her inheritance on the sale of the land acquired by the husband through her ; and this constituted a valuable consideration for the deed of settlement sufficient to support it as against the claims of creditors. It is not easy to perceive how the decision in that case applies to the question involved here. The negotiation for the sale of the wife’s land was going on at the time the apparently voluntary deed of settlement was made, and if the testimony showed that the wife was induced to renounce her inheritance by the expectation that she would be provided for by the deed of settlement, that could scarcely be properly called a subsequent valuable consideration, even though the execution of the deed of settlement did precede the actual renunciation of the wife’s inheritance.
But even conceding that the consideration was subsequent, I do not perceive the application of that case to this. Here the proposition is, that although the deed may have been voluntary in the first instance, yet it has subsequently acquired the character of a deed resting on a valuable consideration by reason of the fact that the grantee has subsequently paid voluntarily, or been made to pay, debts of the grantor. While I do not propose to discuss, I am not prepared to concede, the correctness of this proposition. For the deed, if properly executed, even though purely voluntary, would be perfectly good as between the parties and their heirs — the parties here contending — and it would only be assailable by creditors. Now, if the deed was originally perfectly good and valid between the parties here contending, I do not see how it could be made any better, as between such parties, by the fact that those claiming under it have been compelled to pay, or have voluntarily paid, third persons debts held by them against the grantor.
But, waiving this, it seems to me that the fundamental fact upon which this proposition rests, to wit, that Thomas J. Young has subsequently paid the debts of J. H. Young, the alleged *215grantor, has not been established. On the contrary, the master finds, and the testimony fully sustains his finding, that the payment of the debts of J. H. Young by T. J. Young was voluntary, and that he had received from the rents and profits an amount more than sufficient to pay said debt§. It cannot be properly said that T. J. Young has paid anything towards the debts of J. H. Young, but he has simply applied money coming into his hands which belonged to the estate of J. H. Young to the payment of such debts.
It seems to me, therefore, that in no view of the case can the paper, purporting to be a deed, under which respondents claim, be supported, and, on the contrary, I concur in the findings of the master, both of fact and law, and think the plaintiff is entited to have partition of the land.