| Wis. | Dec 9, 1924
If the trial court is right in finding that there was a mutual mistake of the parties in the deed executed by the plaintiff to Henry J. Peters on November 17, 1903, it is quite clear that there was no such laches on the part of the plaintiff as would bar her right to relief in this action. It is not denied that she has been in the actual possession of the disputed land ever since the erection of the disputed fence, following the family difficulty in 1905.
The determination of this case must rest upon the question of whether or not there was a mutual mistake. A mistake, in order to be mutual, means one reciprocal and common to both parties, where each alike labors under the misconception in respect to the terms of the written instrument. Botsford v. McLean, 45 Barb. 478" court="N.Y. Sup. Ct." date_filed="1866-03-05" href="https://app.midpage.ai/document/botsford-v-mclean-5461138?utm_source=webapp" opinion_id="5461138">45 Barb. 478, 481.
If the mistake has not been mutual but has been made inadvertently on one side and yet in good faith by the other, if any amendment or reformation of the contract can, under any circumstances, be made, it cannot be made so as to make the agreement conform merely to the views of the party
A careful reading of the testimony in this case indicates that no other tract of land was talked about, discussed, or described in the negotiations between Jentzsch and Peters except the south three acres of lot 2 fronting on Hawley road. While in the testimony of Mr. Jentzsch he states that there were half a dozen talks, there seem to have been two or at most three. The parties were never upon the ground. The boundaries of no' particular tract were pointed out. The conveyance as drawn by the notary conformed to the wishes of the parties in that the Peters become the owners of three acres and Jentzsch the owner of five acres, according to their original intention. There is no evidence, except a statement made by Mr. Jentzsch, which indicates that the southeasterly corner was taken into consideration or whether the parties knew or considered whether it belonged to the Jentzsch five acres or the Peters three acres. In addition to that, the description in the deed is clear and there can be no mistake in regard to it. Whether the north line of the three acres conformed to the south line of lot 1 or not, it by its terms extended across the entire south end of lot 2. The south three acres of lot 2 could not by any possibility be the three acres lying immediately south of lot 1, nor did the notary attempt to describe any such piece of land. The entire negotiations carried on between the parties related to the south three acres. That was the language used. Mr. Jentzsch now claims that it meant that part of it lying immediately south of lot 1. There is no evidence to show that Mr. Peters ever understood -it in that sense. While evidence as to the subsequent acts of the parties may be properly received in evidence, upon the whole case it must appear that the mistake was the mutual mistake of both parties at the time of the execution of the conveyance sought to be reformed. The
While a mistake of one of the parties in a proper case may be grounds for rescission or cancellation, in order that there may be a reformation the mistake must be mutual. In other words, the court cannot rewrite the contract which the parties have made so as to express an agreement which the parties had not entered into. Grant M. Co. v. Abbot, 142 Wis. 279" court="Wis." date_filed="1910-04-05" href="https://app.midpage.ai/document/grant-marble-co-v-abbot-8189874?utm_source=webapp" opinion_id="8189874">142 Wis. 279, 124 N.W. 264" court="Wis." date_filed="1910-01-11" href="https://app.midpage.ai/document/milwaukee-elevator-co-v-feuchtwanger-8189754?utm_source=webapp" opinion_id="8189754">124 N. W. 264.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the plaintiff’s complaint.