dissenting. Proper construction of statutes and contacts requires an acceptance of all unambiguous provisions and forbids nullification of any provision of either. It is my firm conviction that the majority opinion offends this universal principle by giving full effect to Code § 37-806, which is beneficial to the optionee, then ignores the significant and unambiguous provision in the option that in the event the optionors are, because of want of title, unable to convey the lands described “the consideration of this option and extensions shall be returned.” Here the parties familiar with Code § 37-806 deliberately chose to fix their respective rights in case of want of title by their contact rather than allow them to be fixed under Code § 37-806. Parties have a right to waive their rights under law, provided the public is not injured thereby. Code § 102-106.
The unfairness and unsoundness of the majority ruling is demonstrated by assuming that the parties have fully executed the contract provision for a refund of the consideration, and either party could legally compel such performance, thus rendering the option a nudum pactum; yet it is being enforced by a court of equity. The contact contains the basis agreed to by all parties for settlement in the event of want of title, and it is a waiver of Code § 37-806 and states the limit of optionors’ liability. Had the parties failed to contract as to their respective rights in the event of optionors’ not having title, those rights would have been fixed by Code § 37-806, and they are charged with knowledge of that law. Or, if they had wished to retain any rights under that law and also contract as they did, they could have written into the contract the option to settle under the law rather than the contract. But with the total *685absence of any of these facts the contract controls in fixing their rights, and the majority have ignored the contract provision for such settlement. The option provision for a refund protected both parties — the optionee in getting his money back, and the optionors in limiting their liability to the refund. It is neither good law nor fair to the parties to say that if title to all the described lands and not just a part of it was lacking the refund should be made. Such construction adds something to the agreement. Obviously want of title to the smallest portion of the described lands is a want of title thereto, and the agreement provides for the refund in that event. Had the parties desired they could have contracted that only in the event optionors had no title to any part of the described lands a refund could be made, but they did not do so and they get that result by the court’s decision which nullifies their contract. Courts have no right to thus change a contract.
The most complete, the purest, and the highest justice that this court can give these parties is to allow their rights to be exactly what they freely agreed with each other those rights should be and expressed in their contract. To deny them such rights is to defeat justice. For the foregoing reasons I dissent. I am authorized to state that Mr. Justice Candler concurs in this dissent.