62 Wis. 316 | Wis. | 1885
The following opinion was filed October 14, 1884:
This is an action of ejectment, in which both parties claimed to hold the premises in dispute under and from Morgan L. Martin, the plaintiff and respondent by his deed of May, 1873, and the defendants and appellants by his deed of January, 1880. In the deed to the respondent the grant was of the whole tract, but thereinafter there was a clause which limited the grant to the interest and title acquired by said Martin by virtue of a deed executed to him by one Evarts, as sheriff of Outagamie county, dated December 23, 1871, which clearly conveyed only an undivided
To these issues the evidence was addressed. The findings of the court are mainly the history of the title to this tract of land, and only three findings of fact are necessary to be noticed in passing upon the questions raised and so ably argued on this appeal: (1) That it was the opinion of Martin that he only acquired, by the said sheriff’s deed, the undivided one-half of said premises conveyed to the respondent before and held by it at the time of said sale, and that it was not his intention to convey any other interest or estate to the respondent; (2) that the mistake of Martin in conveying to the respondent the whole of said tract, instead of only an undivided half thereof, was a mistake of law and not a
The various exceptions to evidence and to the findings need not be specially noticed any further than to say that they sufficiently raised the questions presented by counsel. These questions will be disposed of in their natural order: First. Is the plaintiff estopped, by the former trial and judgment, from setting up a mistake in the deed and from asking its reformation? Second. Was there any mistake shown by the evidence, and if so, was it such a mistake as can be cor-pected in equity? Third. If so, had the respondent such an equitable interest in the undivided half of the premises not intended to be conveyed by said deed, but which, nevertheless, was so conveyed thereby, that the deed ought in equity to stand uncorrected, as conveying the legal title to the respondent as the party entitled in equity thereto? Fx mqiio et iono.
The respondent has not been prejudiced or his rights affected one way or the other by the appellant’s having op the first trial relied upon the deed itself as not conveying the whole premises, and has not been influenced in its action either in court or in pais by the appellant so insisting. There was no judgment in the action when the new defense was interposed, as it had been vacated, and the action was to be tried as if it had never been tried, and as an original action, and the two defenses, one on the deed itself as not conveying the whole tract and the other for the reformation of the deed if necessary to that effect. If there had been no trial or judgment in the case, there can be no doubt that both of these defenses could be interposed to the action. There has never been a trial or judgment, so far as the present trial is concerned. The action is fully open to be tried de novo. If the circuit court had the discretion to allow such an amendment of the answer, and of that we have no doubt, it follows that the answer may be proved. The amendment was made without objection, and issue taken upon it by a replication. The first answer admitted nothing favorable to the respondent, nor was any proof offered under it that placed the respondent in any more favorable position than it occupied before.
“ The grantee of land conveyed by an intestate with intent to defraud his creditors ispiot estopped by taking under the deed and acting upon it to object, as one of the creditors of the estate, that the deed was fraudulent.” Norton v. Norton, 5 Cush. 524. A case in point is that of N. W. U. P. Co. v. Shaw, 37 Wis. 655. The company purchased from Shaw a quantity of wheat, to be delivered, and paid down upon it $1,000. Shaw failed to deliver the wheat, and the company brought suit upon the contract and claimed (1) the $1,000; (2) damages for the breach of the contract; and (3) damages for the value of the use of a barge detained for
In Steinbach v. Relief F. Ins. Co. 77 N. Y. 498, there was a judgment against.the plaintiff in his action on the policy, which had been affirmed by the supreme court of the United States and was pleaded in bar of the suit to reform the policy. But here there is no judgment in the way. The case cited by the learned counsel of the respondent (Washburn v. G. W. Ins. Co. 114 Mass. 175) illustrates this principle fully. A bill in equity -was pending to reform the policy, and the plaintiff brought another suit upon the policy, alleging compliance with its terms, and after a trial and judgment against him therein he was held to have waived his right to prosecute further his bill. It may be observed that he was allowed to prosecute his second suit, notwithstanding the pendency of the first. It was the judgment that stood in his way, and such was the case of Sanger v. Wood, 3 Johns. Ch. 416, cited by the learned counsel. The plaintiff took judgment on the contract, and afterwards sought to set aside the contract on the ground of fraud.
Without any disrespect to the learned counsel, it may be said that none of the authorities cited by him are in the way of allowing proof of this counterclaim. The rights of no one are affected, and much less fixed and determined, by
The United States government was only interested in ha.v-
The mistake was in placing such limitation in the deed after the grant, instead of in the grant itself. But this limitation clause, even where it was inserted in the deed,-is potent and conclusive as to the real agreement and understanding and intention of the parties. It may not have technically limited the grant to one half of the tract; but does it not estop the parties to the deed and their privies from afterwards disputing the intention expressed by it, at least in equity, when the correction of the mistake is sought? Speculation as to what kind of a mistake this was, whether of fact or of law, and as to what it should be named or how classified, is idle and fruitless. . Things and the substance of things, and the established principles of reason and equity, should be considered in such a case, rather than mere names which may mislead, and if this mistake was mutual and of all of the parties concerned, which was substantially admitted by them, ought it not in fairness and equity to be corrected, and the deed reformed in this respect? Should the court be restrained from applying an equitable remedy in such a case by a decision here and there that a similar mistake was of law, and therefore could not be corrected, or of fact, and therefore remediless. I shall not cite' many authorities or comment at any length upon those cited, to extend this opinion needlessly. The decisions are very conflicting and in much confusion on this question, and abound in nice and critical distinctions. If, in cases substantially like this in principle, a reformation of the deed has been allowed, they may be referred to, to support and sanction the very strong first impression we have that this deed ought to be reformed.
This question was very fully argued by-.counsel, and very fully and ably treated and considered by Chief Justice Dixon in Hurd v. Hall, 12 Wis. 125, in respect to a mistake
As we have seen, there was a clear and explicit agreement and understanding that this deed should be given to convey only the interest which Mr. Martin held in the tract by virtue of his sheriff’s deed. Mr. C. N. Gregory was employed to draw up such a deed, but in drawing it he made the mistake of so drawing it that it conveyed the whole tract, instead of the one-half covered by the sheriff’s deed. Does not this case meet in every respect the admission of the learned counsel of the respondent in his brief, as follows: “A middle ground is being built up. It is, where there is a complete precedent contract or agreement not executed — not correctly expressed in the written agreement— a court of equity will decree a specific performance of the precedent contract. This, for convenience, is done by directing reformation of- the written instrument. The authorities to sustain this exception to the rule are numerous and strong.” And the learned counsel cites Petesch v. Hambach, 48 Wis. 443; Conrad v. Schwamb, 53 Wis. 372; James v. Cutler, 54 Wis. 172, and numerous other authorities, to sustain the admitted proposition. In one of these cases (Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass.
In the last edition of Kerr on Frauds, 468, 469, in view of established authority on this question, and quoting from authority, it is said: “ ‘Private right of ownership is a matter of fact; it may also be the result of a matter of law; but if parties contract under a mutual mistake and misap--prehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded on a common mistake.’ ‘Ignorance of a matter of law,’ said Lord Chelmsford in Earl Beauchamp v. Winn, L. R. 6 E. & I. App. Cas. 234, ‘ arising upon the doubtful construction of a grant, is very different from ignorance of a rule of law. Therefore, although when a certain construction has been put by a court of law upon a deed, it must be taken that the legal construction was clear, yet the ignorance, before the decision, of what was the true construction, cannot be pressed to the extent of depriving a person of relief on the ground that he was bound himself to have known beforehand how the grant must be construed.’ "When, therefore, a man, through misapprehension or mistake of the law, parts with or gives up a private right of
In Woodbury Savings Bank v. C. O. F. &. M. Ins. Co. 31 Conn. 517, the mistake was by the agent in drawing the application for the policy to cover the property itself, instead of the mortgagee’s interest in it. The court said: “ There was a mistake as to the proper mode of filling out the papers on both sides. The application was made out in the wrong name, and the policy was made to the wrong person; but there was no fraud or misrepresentation. The papers would have been made out right if they had known how to do it; and it is immaterial whether the mistake was one of fact or of law; ” citing Stedwell v. Anderson, 21 Conn. 139. In Hunt v. Rousmanier's Adm’rs, 8 Wheat. 174, the legal counsel of the parties advised that a power of attorney should be drawn and executed, instead of a mortgage, for certain security, which the power failed to give! Chief Justice FIaRshall said: “ In this case the fact of mistake is placed beyond controversy. ... We find no case which we think precisely in point, and are unwilling, when the effect of the instrument is acknowledged to have been entirely misunderstood by both parties, to say that a court of equity is incapable of affording relief.” A bond was drawn joint by the mistake of the person who drew it, when it should have been joint and several; and it was corrected in equity. Simpson v. Vaughan, 2 Atk. 33; Underhill v. Horwood, 10 Ves. Jr. 209. The cases are numerous of the correction of
It is a little singular that there should have been any conflict of decisions on this question, when as early as 1730 it was decided by the old English court of chancery that when of four brothers the second died, and the oldest entered into possession of his lands as heir, and the youngest brother claimed it, and they went to a school-master who sometimes acted as an attorney, and consulted him as to their rights, and he having advised them that lands descend to heirs, and not ascend, and therefore the youngest was entitled to the estate of his deceased brother; and, on that advice, papers were drawn and executed by the oldest brother, giving the youngest brother an interest in the land to save litigation,— the Lord Chancellor decreed that all such papers should be delivered up to the plaintiff as having been obtained by mistake, etc. Lansdown v. Lansdown, Mos. 364. A promissory note was assigned unqualifiedly, when, according to contract, it ought to have been without recourse. It was reformed in equity according to the intention of the parties. Stafford v. Fetters, 55 Iowa, 484.
But this opinion on this question has been already extended too long. The learned and candid counsel of the respondent virtually admitted the law to be as above stated, and the question might have rested on such admission; but it being involved in the case by the finding of the court, and in respect to such a case a new question in this court, and there being a conflict of decisions elsewhere, to some extent, on the question, may justify this consideration of it. It follows from the above that there was'a contract between the parties for a conveyance of only one half of the tract,
By the Court.— The judgment of the circuit court is reversed, and the 'cause remanded with direction to render judgment in the case according to this opinion.
Tbe following opinion was filed March 3, 1885:
The learned counsel of the respondent, on their motion for a rehearing of this case, have submitted very able and elaborate arguments.
On the main question of the mistake in the deed of Morgan L. Martin to the respondent, and the jurisdiction of a court of chancery to correct it, nothing
In respect to the equity of the respondent in the undivided half of the premises not intended to be conveyed by Martin by that deed, which ought to deter a court of equity from correcting such mistake, there seems to be a misapprehension of the opinion. It was certainly not intended to express the opinion that the state or the company had not the right to take the lands of private owners necessary for the improvement, and the water powers created thereby and incidental thereto. It was only intended to say that the state had no right to take the lands of private owners for mere mill-sites, or ground on which to build and construct mills or manufacturing establishments, and not used for the water power itself, to which the water from said water powers may be carried, whether contiguous to or remote from such water powers. It was supposed that such meaning was conveyed by the use of the language “hydraulic works ” and “ hydraulic purposes.” The opinion is authority only as it uses this language in application to this particular tract of land, as it was situated when Martin obtained title thereto. In respect to this tract of land so situated, it was held that the state had or could have no right, legal or equitable, present or prospective, which Martin,
Sec. 15 of the improvement act of 1848
By the Court.— Motion denied.
“An act to provide for the improvement of the Fox and Wisconsin rivers and connecting the same by a canal.” Laws of 1848, p. 53.