Harter v. Christoph

32 Wis. 245 | Wis. | 1873

LyON, J.

It is not claimed that the plaintiff is in any better or different position in respect to the mortgage in controversy than the mortgagee would have been in, had the mortgage not been assigned. Hence, the only question to be determined is, whether there was sufficient evidence to justify the finding of the county court that the alleged mistake in drawing the mortgage was made, and that it should have been drawn to secure the payment of but one-half of the amount of the notes.

The rule is perfectly well settled, that a court of equity will not reform a written instrument for a mistake in reducing it to waiting, unless such mistake is established by the most clear and satisfactory proof. Until such proof is made, the written instrument must be taken to contain the real contract between the parties. This rule has been repeatedly asserted, even in stronger terms than are here employed, and enforced by this court. Newton v. Holley, 6 Wis., 592; Lake v. Meacham, 13 id., 355; Fowler v. Adams, id., 458; Harrison v. The Juneau Bank, 17 id., 340; Kent v. Lasley, 24 id., 654; McClellan v. Sanford, 26 id., 595. A written instrument will not be reformed unless the correction asked -for expresses the understanding of both parties thereto at the time it was executed. Ledyard v. The Hartford Ins. Co., 24 Wis., 496.

The defendant Christoph, the mortgagor, seeks to impeach the mortgage for an alleged mistake therein; and his position in respect to it is precisely the same as though he were in court as a plaintiff asking to have the mortgage reformed. Hence the foregoing rules of law are applicable here ; and, unless the evidence clearly and satisfactorily proves the alleged mistake, or, in the language of many of the cases, unless it proves the same beyond a reasonable doubt, the defense fails, and the mortgage must be enforced according to its terms.

Tested by these rules, the conclusion is irresistible that the evidence is entirely insufficient to support the finding and judgment of the county court. It would be an extreme case which would justify the court in reforming or defeating a written instrument for a mistake therein, upon the uncorroborated testimony of a party to it, although such testimony were uncontra-dicted. Kent v. Lasley and McClellan v. Sanford, supra. But in this case, not only is the testimony of the mortgagor uncorroborated, but it is disputed by that of the agent of the mortgagees, the witness Bacon, in very material particulars. Considering Bacon’s testimony in connection with the facts that the defendants bought the machine together and operated it together, that Christoph knowingly signed joint notes with Dunn for the price, and that the mortgage was executed in its present form, we should hesitate to say that there is even a preponderance of testimony in support of the theory that the alleged mistake intervened in drawing the mortgage. Much less could we say that the testimony proves clearly and satisfactorily that when the contract of purchase was made, both Christoph and Bacon understood that the mortgage was to be given by Christoph to secure only one-half of the price of the machine and power.

The judgment of the county court must be reversed, and the cause remanded for further proceedings according to law.

By the Court.— So ordered.