dissenting:
I cannot concur in two of the holdings of the majority opinion, namely: (a) That the defendant, George W. Mc-Clanahan, is not entitled to have the deed to him from Green Charles and D. M. Charles, of date September 5, 1901, reformed, as prayed for in the answer of such defendant, by striking therefrom the clause therein which is as follows, to-wit: “ (one-half of the mineral is excepted from' this conveyance),” so as to make the deed conform in its subject matter with the contract of purchase which was entered into between said defendant and such grantors prior to the execution and delivery of the deed; and (b) that the deed from such defendant and wife to their son, Wilson McClanahan, of date July 16, 1918, should be cancelled, vacated and annulled in so far as it purports to convey one-*690half of the coal a,nd minerals underlying the land conveyed by such deed.
The correctness of both of these holdings depends upon the correctness of the holding first mentioned.
As I understand the opinion, it does not affirmatively decide whether the evidence does or does not establish that the contract of purchase differed from the deed in that the contract of purchase contained no reservation of any mineral interest, whereas the deed did contain the reservation aforesaid, nor does the opinion affirmatively decide whether such reservation in the deed was or was not occasioned by the mutual mistake of both the grantors and the said defendant grantee in thinking-at the time the deed was executed and delivered that the grantors owned only a half interest in the minerals (meaning coal and other minerals), underlying the land, or by such mistake on the part of the grantee, induced by the fraudulent representation of the grantors. But the opinion takes .the following position, namely (I quote from the opinion) :
“* * * that even if the grantors were mistaken in thinking that they did not own all of the minerals, it is nevertheless true, and is clear from the testimony, that when they came to execute the deed, it was explicitly and distinctly understood that the title to one-half of the minerals thereunder was not to be conveyed. There was no mistake of the draftsman in drawing the deed, nor was there any mistake or misunderstanding as to the property which the deed conveyed and as to the estate in the minerals therein which were reserved. The precise form of the deed grew out of the ignorance of both the grantors and the grantee as to the true estate which the grantors owned prior to the conveyance.
“We must first determine, then, in this case, the true effect and proper construction to put upon the original conveyance of the twenty acres here involved. McClanahan *691claims that it was the previous understanding that he was to have the entire estate therein which the grantors owned. In the absence of fraud or mistake in the instrument itself, the rule is universal, applicable to deeds as well as to all other contracts, that prior stipulations and understandings are merged in the final and formal contract executed by the parties, and when a deed has been delivered and accepted as performance of an antecedent contract to convey, the contract is merged in the deed.” Then follows the citation of a number of cases to sustain such position.
This position, as I understand it, is this: If it be assumed that the contract of purchase was of the land and all mineral interests, and that when the deed came to be made subsequently, the clause reserving one-half of the mineral interest, which is ¡at variance with the contract of purchase, was inserted in it solely because of the mutual mistake of the grantors and grantee in thinking at the time that the grantors did not own such one-half interest, nevertheless the grantee is bound by the deed as it stands, since the language employed in it is the precise language intended at the time by both grantors and grantee to be so employed, there being no mistake of the draftsman in drawing the deed. Such position, as it seems to be, is in direct conflict with the well settled doctrine on the subject.
As said in 2 Pomeroy’s Eq. Jur. (3rd ed.), sec. 853: “All mistakes of fact in agreements executed or executory, express or implied, must be either concerning the subject matter or the terms. In the first case the terms are stated according to the intent of both the parties, but there is an error of one or both in respect of the thing to which those terms apply — its * * * title * * * and the like
The case before us belongs to the first class of cases mentioned in the quotation just made. The error under con*692sideration concerns the subject matter of the contract, not the terms (i. e., the language) intended to be used in the deed. There was no mistake in the language which was intended to be used in the deed; but the mistake of both grantors and grantee (or as we shall presently more specifically mention, the mistake of the grantee induced by the fraudulent representations of the grantors and so coupled with the fraud of the grantors) “prevented from being put into writing” in the deed the whole subject matter which was embraced in the contract of purchase and which but therefor would have been put into the deed. (3 Pomeroy’s Eq. Jur., sec. 867.) In such case it is immaterial that there is no mistake of the draftsman in drawing the deed. As is well settled, a court of equity will reform a deed where, by reason of fraud or mutual mistake, the language, fully understood and intended to be used in the deed, either embraces “subject-matters which were not intended by the parties to come within its operation, in which case the parol evidence will show that such subject-matters should be omitted and the relief demanded will be a correction which shall exclude them * * *” or where the deed omits “certain subject-matters * * * which were intended by the parties to come within its operation; and in this case the parol evidence will show that such subject-matters should be included, and the relief demanded will be a modification of the writing, so that it shall embrace them and shall then extend its operation to particular subject-matters not mentioned in it, but to which it was originally intended to apply.” See Pomeroy’s Eq. Jur., sec. 865. The case before us is one in which the error prevented the terms of the deed from conveying the whole mineral interest embraced in the contract of purchase.. Hence the case falls within the class of deeds last above mentioned.
As said by the same authority, section 866: “The doctrine in all its breadth and force is maintained by courts and *693jurists of the highest ability and authority, which hold that whether the contract is executory or executed, the plaintiff may introduce parol evidence to show mistake or fraud whereby the written contract fails to express the actual agreement, and to prove the,modifications necessary to be made, whether such variation consists in limiting the scope of the contract or in enlarging and extending it so as to embrace land or other subject matter which had been omitted through the fraud or mistake, and that he may then obtain a specific performance of the contract thus varied, and such relief may be granted although the agreement is one which by the statute of frauds is required to be in writing. This view, in my opinion, is not only supported by the overwhelming preponderance of judicial authority, but is in complete accordance with the fundamental principles of equity jurisprudence. * * * The same broad view of the doctrine is clearly illustrated in the treatment of executed contracts, or conveyances. It is settled by the great preponderance of authority that a deed of land may be thus corrected by enlarging its scope, extending its operation to other subject-matter, supplying portions of land which had been omitted, making the estate conveyed more comprehensive, as changing a life estate into a fee, and the like, and by enforcing the instrument thus varied against the grantor.”
And as also said by the same authority, section 859: “It is * * * settled that in suits, whenever permitted, to reform a written instrument on the ground of a mutual mistake, parol evidence is always admissible to establish the fact of the mistake and in what it consisted; and to show how the writing should be corrected in order to conform to the agreement which the parties actually made.”
The same is true in cases of fraud. Idem, sec. 872 et seq.
And the same doctrine is applicable where the reforma*694tion in the deed is sought to be made by the allegations of the answer of a defendant. Idem. sec. 860, at p. 1519.
Hence, in the view I take of the case, it is essential for the decision of the questions covered by the two holdings of the majority opinion above referred to that we should decide what the evidence in the cause establishes was the contract of purchase with respect to its difference from the deed; and what caused the reservation aforesaid to be inserted in the deed.
Upon such a question of fact it is true,- as is well settled, that “the evidence must he clear, convincing and satisfactory.” Charles v. Charles, 127 Va. 604, 104 S. E. 823; Pomeroy’s Eq. Jur., sec. 862. But the testimony of the defendant, George W. McClanahan, who, it is to be remembered, was examined by the appellant, Green Charles, as a witness in his behalf, clearly, convincingly and satisfactorily shows that the contract of purchase contained no reservation of any mineral interest in the land; and that it was not until subsequently to the payment and satisfaction in full by this defendant of the purchase money and other consideration for the land that, when the deed to be made by the vendors was mentioned, the vendors (through appellant) stated to the defendant vendee that they owned only a half interest in the mineral interest in the land, and for that reason alone would have to reserve such an interest by the provisions of the deed. Both of the vendors testify in the cause as witnesses for appellant, and it is, to my mind, a significant fact that neither of them deny, and the appellant practically admits, that they did represent to the said defendant at the time they made the deed to the latter, as the reason for the reservation aforesaid, that they owned only the half interest in the minerals which the deed by its provisions conveyed, and said defendant positively testified repeatedly in his deposition was their distinct representation on the subject; yet, both of such vendors testify in *695effect that such representation was untrue; that they never thought that there was any defect in their title to the mineral interests except as to one-third of such interests. They testify in substance that they had a bona fide doubt at the time they made the deed to the said defendant as to whether they had any title to one-third of such mineral interest; but they did not so state the situation to such defendant. The appellant, Green Charles, testified on this subject as follows:
“Q. Wasn’t the exception made because you did not think you owned the entire interest in the coal?
“A. It might have been something bearing on my mind that way, that we did not own the entire interest, I could not say.
^ $
“Q. Did you not state to George W. McClanahan that you did not own the one-half interest in the coal?
“A. I don’t remember of ever saying much to him about it. I might have said something to him that we didn’t own it, on account of some settlement that was made in the Pearson survey.”
D. M. Charles testified on the same subject as follows: “We thought there was a third of the coal gone from us but we were going to except half of it.”
Such being the facts, it seems to me to clearly appear that the untrue representation of the grantors to the grantee as to the title was in effect a fraudulent representation, since the grantors knew at the time they made it that it was not a correct representation, and it was intended to induce the vendee to act upon it as being strictly correct.
There is nothing in the testimony in chief of appellant or in the other evidence for appellant, in conflict with the testimony of said defendant with respect to what the contract of purchase was, except that there are certain state*696ments in the testimony of appellant on cross-examination which are to the effect that in the contract of purchase it was understood that a half interest in the minerals was not embraced in the sale. But this merely creates a conflict in the evidence for appellant, and, to my mind, these statements in the testimony of appellant bear internal evidence of their untrustworthiness; and, besides, they come from one guilty of the fraudulent representation aforesaid: so that they do not, as I think, in any degree lessen the convincing force and effect of the testimony of the said defendant.
On the whole, therefore, I think that the case established by the evidence is as follows: The contract of purchase was of the land, including all mineral interests (meaning coal and other mineral interests). When the deed came to be made, the aforesaid reservation provision was inserted in it, solely because of the mistake of the grantee aforesaid in thinking that the grantors did not own and hence could not convey more than a half of the mineral interest embraced in the contract of purchase, such mistake on the part of the grantee being induced by the fraudulent representation aforesaid on the part of the grantors.
This presents, to my mind, a typical case for reformation of the deed under the well settled doctrine on the subject. And the same would be true if the mistake aforesaid had been merely a mutual mistake of grantors and grantee.
McClanahan held the deed as he did for seventeen years before this suit was brought because he thought it was all the conveyance his grantors had it in their power to make him. He was led into this mistake by the false representation of his grantors aforesaid. From the bill in this suit McClanahan first discovered the existence of the mistake. He thereupon promptly answered the bill and asked for the reformation aforesaid of the deed.
I think, therefore, that the deed should be reformed in *697accordance with, the prayer of the answer qf the said defendant. It follows that the deed aforesaid of such defend- and wife to his son does not constitute any cloud upon any title of appellant and hence should be allowed to stand as it is.