| Wis. | Oct 11, 1862
By the Gourt,
This case presents the question whether, where a chattel mortgage gives a totally false description of the note it was intended to secure, through mistake in drawing it, a seizure of the property mortgaged can be justified in an action at law, without reforming the instrument. We think it cannot. It is true that equitable defenses may now be interposed. But the facts here sought to be shown constitute not an equitable but a legal defense, if they can once be established. The difficulty is in getting at the proof. The papers having been made wrong by mistake, the parties are bound by them unless they take some appropriate method to correct the mistake. That method is not to prove the mistake in an action at law, and have the same benefit as though the instrument were reformed; but it is to bring an equitable action to reform the instrument so that it can have its proper legal effect. Suppose A, intending to deed lot 1 to B, by mistake deeds lot 2. Can B bring an action of ejectment for lot 1, and on proving the mistake, recover? We think not. Such a mode of proceeding would lead to great uncertainty and confusion. Equity aids
Tbe proper course for tbe defendant would have been to have proceeded in an action to reform tbe mortgage, and to stay proceedings in tbe meantime in tbe action at law.
Tbe judgment is reversed, with costs, and tbe cause remanded for further proceedings.