41 Wis. 404 | Wis. | 1877
If it be assumed that the surveyor found the true boundaries of lot 10, block 155, and that a portion of the warehouse stands upon- the east fifteen feet of that lot, then we are clearly of the opinion that the deed must be reformed on account of a mistake in the quantity of land conveyed. For equity will reform a deed where there has been a mistake, provided the evidence leaves no reasonable doubt tha,t the instrument does not embody the real intention of the parties to it. This doctrine is so| familiar that it needs no reference to authorities in its support. Now to our minds the proof is overwhelming in favor of the claim that it was only the ground east of the warehouse which was intended to be purchased and sold, and that, while the deed conveys the east fifteen feet of the lot, yet this was not the actual understanding and agreement of the parties. Upon that point the evidence is perfectly conclusive, and the mistake is as clearly established as it can be by parol testimony. Even Anton Fuchs himself admits that at the time he made the purchase he did not suppose he was buying any of the land upon which the warehouse stood. He purchased that portion of the lot lying east of the warehouse. True, lie says he expected to buy fifteen feet off the east side of the lot; but all supposed there was fifteen feet between the warehouse and the east line of the lot. Mr. Tewelles, the interpreter, who acted as the friend if not the agent of Fuchs, measured the lot, and said there was fifteen feet from the east line up to the warehouse. The plaintiff and her husband went upon the lot during the negotiation; saw the situation of the premises, and fully understood that they were only buying the land up to the warehouse. The contract was for the sale of that portion of the lot, whether it was more than fifteen feet wide or not.
In his answer, the defendant Treat, sets up fully this equitable defense, that there is a mistake in the deed, and asks that the same be corrected. The matters stated in the answer would doubtless constitute a counterclaim before the rule laid down on that subject in Stowell v. Eldred, 39 Wis., 616. This action was commenced before that decision was made, and therefore the doctrine of that case cannot apply to it. There was no reply to what must be regarded as the counterclaim, and consequently the mistake in the deed is admitted on the record. But, as we have already said, the evidence is conclusive that there is a mistake in the deed, and the court should grant the relief asked in the answer.
The judgment of the circuit court is reversed, and the cause is remanded with directions to reform the deed so as not to include any land upon which the warehouse stands.
By the Court. — It is so ordered.
