Decided October 25, 1910.
On Petition for Rehearing.
[111 Pac. 246.]
Mr. Justice Slaterdelivered the opinion of the court.
8. Plaintiff concedes by his motion for a rehearing that the conclusion reached, as to the alleged estoppel, is correct, but still insists that upon the facts shown a court of equity would have reformed the first deed to conform to the intent of the parties as recited in the second deed, and that that which equity would have decreed may be done by the parties themselves and the same effect will be given the result. We do not now controvert the latter contention, for it is not necessary to a decision of the case. But we have said that a court of equity would not have reformed the first deed upon the petition either of Kesler, the grantee, or of Mrs. Kesler, who it is said was an intended grantee. The latter was the intended object of a mere bounty. “If there is a mistake or a defect,” say the court in Adair v. McDonald, 42 Ga. 506, “it is a mere failure in a bounty, which, as the grantor was not bound to make, he is not bound to perfect.” This *294was held by this court in Clark v. Hindman, 46 Or. 67 (79 Pac. 56). In Bohanan v. Bohanan, 3 Ill. App. 502, a case somewhat similar to the present one was presented. B., to induce his son to abandon a contemplated removal to Nebraska, told him, if he would not go, he would purchase for him a 40-acre tract, which he accordingly did. The son made improvements upon the house and farm and put in crops, but did not move upon the premises. By mistake B. was named as grantee in the deed instead of his son, who died shortly afterwards. On a bill filed by the heirs of the son to correct the mistake, relief was granted. The court puts the decision upon the injury suffered by the son, who had taken possession and made improvements. He had also been offered $1,000 by his wife’s father to start in business if he should remove to Nebraska. “It is true,” say the court, “that the land was a gift from the father to the son, but the son having given up going west and taking with him the one thousand dollars from his wife’s father, and also having taken possession of the given land and expended money in improvements thereon as his own,” it was a case within the province of equity to grant relief. See, also, Haack v. Weicken, 118 N. Y. 67 (23 N. E. 133). Neither would equity have reformed the deed on the petition of Kesler, for he was not injured. He had received the title to the whole estate and was in a position to invest Mrs. Kesler with whatever interest in the premises he might wish to bestow. “Equitas non supplet ea quae in manu or antis esse possunt“Equity does not supply those things which may be in the power or reach of an applicant.” Lofft’s Rep. Max. 391.
The motion is therefore denied.
Affirmed : Rehearing Denied.