Even where an executory contract relates to land and is within the Statute of Frauds, many American authorities allow its reformation whether a deed has subsequently been executed in conformity with the written contract or not.80 In other decisions, however, American courts have declined to reform such an executory contract, especially if it is sought to enlarge the terms of the writing, unless there has been such part performance or other circumstances as will make a failure to reform work a fraud upon the complainant.81 The latter cases seem sound. Where the only effect of a refusal to reform a contract is the loss of an executory bargain which the parties intended to make, it seems impossible to give relief on any principle that would not justify the entire destruction of the Statute.
There seems little reason to distinguish between enlarging the terms of the writing and diminishing them. In either case a contract is being enforced at variance with the writing and to the disadvantage of one of the parties. The question ultimately resolves itself into this: how far may the court go in disregarding the Statute in order to prevent it from working injustice? It should be observed that the statute interposes no obstacle to rescission of the transaction by the court,82 and in any case where there is such part performance of a contract for the sale of land as to avoid the effect of the local statute,83 there is no more difficulty in reforming the written contract, than if the contract originally was not within the statute. Nor is there any doubt that if the defendant sets up the mistake in bar to a suit to enforce the contract as written, the court may refuse to enforce the contract except on the plaintiff's assent to modify the writing to correspond to the real agreement.84
Leigh, 594; Parker v. Cousins, 2 Gratt. 372, 390, 44 Am. Dec. 388. In some cases without resort to a court of equity, relief has been granted to the other partners at law. Minor v. Wil-loughby, 3 Minn. 225; Dickerman v. Ashton, 21 Minn. 538; Thomas v. Joslin, 30 Minn. 388, 15 N. W. 675; Henry County v. Gates, 26 Mo. 315; Human v. Cuniffe, 32 Mo. 316; Fagely v. Bellas, 17 Pa. 67 (disapproved in Boston Co. v. Smith, 13 R. I. 27, 36, 43 Am. Rep. 3); Jones v. Horner, 60 Pa. 214; Alcorn's Ex'r v. Cook, 101 Pa. 209. 80 Murphy v.Rooney, 45 Cal. 78 (cf. Baume v. Morse, 13 Cal. App. 456, 110 Pac. 350); Trout v. Goodman, 7 Ga. 383; Hunter v. Bilyeu, 30 111. 228; Carson v. Davis, 171 111. 497, 500, 49 N. E. 701; Popplein v. Foley, 61 Md. 381; Olson v. Erickson, 42 Minn. 440, 44 N. W. 317; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Bellows v. Stone, 14 N. H. 175, 201; Keisselbrack v. LivingBton, 4 Johns. Ch. 144; Workman v. Guthrie, 29 Pa. 495, 510, 72 Am. Dec. 654; Campbell v. Fetterman's Heirs, 20 W. Va. 398, 410. See also hand, if the instruments gave lees than the donor intended, the donee can get no relief,86 unless there have been such improvements made by the grantee as to give the donee a special equity. These cases sufficiently show that in reforming instruments equity is not, as often said, restoring the real transaction and setting aside merely the apparent one. If the real transaction were what the parties to a contract or conveyance intended as distinguished from what they expressed, the same would be true in the case of gifts; and no different rules should be applied to volunteers from those applicable to parties who give value. In truth, the basis of the rule concerning volunteers, is simply that it is not just to let a gift stand which was greater than the donor intended, and, on the other hand, a volunteer who gave no consideration cannot ask for the enforcement of an intention which has remained purely executory. It is immaterial that a party against whom relief is asked received no consideration, if the complainant gave consideration. Therefore, equity will reform an instrument against sureties.87 If a writing was part of an illegal transaction equity will not reform it at the suit of a party to the illegality.88
Durham v. Taylor, 29 Ga. 166 (contract in consideration of marriage); Cooper Grocery Co. v. Neblett (Tex. Civ. App.), 203 8. W. 365 (guaranty). 81 Osborn v. Phelps, 19 Conn. 63, 48 Am. Dec. 133; Allen v. Kitchen, 16 Idaho, 133, 100 Pac. 1052; Elder v. Elder, 10 Me. 80, 25 Am. Dec. 205; Climer v. Hovey, 15 Mich. 18; Wirtz v. Guthrie, 81 N. J. Eq. 271, 87 AtL 134; Davis v. Ely, 104 N. C. 16, 10 S. E. 138, 5 L. R. A. 810, 17 Am. St. Rep. 667; Safe Deposit Ac. Co. v. Diamond Coal etc. Co., 234 Pa. 100, 83 Alt. 54, L. R. A. 1917 A. 596; Macom-ber v. Peckham, 16 R. I. 485, 17 Atl 910. And courts which have declined to reform executed deeds by the inclusion of a greater quantity of land than that conveyed (see supra, Sec. 1552, ad fin.) would a fortiori hold the same in regard to an executory contract. In most of the cases in the note preceding this, the discussion was slight, and in some of them there may have been such equitable circumstances as to justify reformation on the ground that otherwise a fraud would be worked.