48 Wis. 443 | Wis. | 1880
Lead Opinion
An essential condition upon which a court of equity will reform a written instrument is, that the parties thereto have made a binding contract, which they mutually agreed to incorporate in the instrument, but which, through
In the opinion by Dixon, O. J., in Hanson v. Michelson, 19 Wis., 498, it is said: “It is a familiar rule that a de-’ fective deed may be treated in equity as an agreement to convey, and performance enforced; and where it is, we think, as was held in Eaton v. Eaton, that it stands on the same footing as an executory contract to convey, and that it will not be carried into effect by a court of equity if it appears to have been made without consideration.” In the late case of Sherwood v. Sherwood, 45 Wis., 357, the power of 'the court to correct a mistake in a will was denied. One of the grounds of the judgment is thus stated: “The reason why courts of equity will not interfere in such cases seems to be, that an action to reform a written instrument is in the nature of an action for specific performance, and the making of a will being a voluntary act there is no consideration, as in actions to reform deeds or contracts, to support the action. Hence it is said in a note by the editor of Wigram’s Treatise on Extrinsic Evidence in Aid of Wills, that 1 volunteers under wills have no equity whereon to found a suit for specific performance.’ ” In Hunt v. Rousmaniere’s Adm’rs, 1 Pet., 1, it is said that “ the execution of agreements fairly and legally entered into is one of the peculiar branches of equity jurisdiction; and if
The above citations, which might be increased almost indefinitely, are sufficient to show that an action to reform a written instrument is in the nature of an action for specific performance, and relief is granted therein on the same principles. Also that an instrument not founded upon sufficient •consideration — that is, a mere voluntary instrument — will not be reformed; neither will an instrument be reformed to express a contract which originally was nudum pactum. Indeed, the authorities on this subject, both in this country and in England, all seem to be one way.
There has been some conflict of decision in the application of the principles above stated to cases where the contract omitted from, but sought to be embodied in, the reformed instrument, was, while resting in parol, void by the statute of frauds. Such a case would arise, if, from a conveyance executed in attempted compliance with a parol contract for the sale and purchase of land, the land intended, or some part thereof, should be omitted by mistake.
In Massachusetts and Maine, and perhaps in some other states, it has been held that the conveyance cannot be reformed unless there is a valid, to wit, a written, executory contract of sale to reform by. Glass v. Hulbert, 102 Mass., 24; Elder v. Elder, 10 Me., 80. To the same effect are the cases of Osborn v. Phelps, 19 Conn., 63, and Best v. Stow, 2 Sandf. Ch., 298. Some of these cases concede the right of the defendant resisting specific performance to show by parol that
It is said by Professor Pomeroy, in his late tz-eatise on the specific pei’formanee of contracts, that the preponderance of judicial authoiity in this country supports the opposite doctrine, to wit, that the statute of frauds is no impediment to the reformation of a conveyance; and in his notes to section 204, he cites numerous cases ip support of that proposition. But the learned author states (no doubt correctly) the ground upon which these decisions rest. lie says: “ The statute of frauds is no real obstacle in the way of administering equitable remedies, so as to promote justice and prevent wrong. Equity does not deny or ovemule the statute; but it declares that fraud — and the same is true of mistake — creates obligation and confers remedial rights which are not within the statutory prohibition — in respect to them the statute is uplifted.” Section 266, page 350.
This is but another inode of saying that, notwithstanding the statute of frauds, there is in such a case a valid and binding executory contract, which the parties intended and attempted to embody in the instrument sought to be reformed, but failed to do so. Hence the cases which uphold the reformation of written instruments in proper cases, without regard to the statute of frauds, are in entire harmony with the rule above stated that there must be a valid binding contract to reform by, or reformation will not 'be decreed.
In general, by the principles of the common law, a feme covert can do no act to bind herself; she is said to be sub fotestate viri, and subject to his will and control. Her acts are not, like those of infants and some other disabled persons, voidable only, but ai’e, in general, absolutely void ab initio. Elliott v. Peirsol, 1 Peters, 338. Because of her disability to contract, it has uniformly been held that if a wife join her husband in the executipn of a defective conveyance, such con
Hamar v. Medsker, 60 Ind., 413, is relied upon by counsel for appellant to sustain this action. In that case a married woman owned land in her own right, sold it, and received the purchase money therefor. She executed a conveyance to the purchaser, in which her husband joined, but by mistake the land actually sold was not described therein. A statute of that state is as follows: “No lands of any married woman shall be liable for the debts of her husband; but such lands' and the profits therefrom shall be her separate property, as fully as if she was unmarried; provided;, that such wife shall have no power to encumber or convey such lands, except by deed, in which her husband shall join.”
The action was to reform the deed so that it should convey the land actually sold, and it was so reformed. There was no argument by counsel against the power of the court to correct a mistake in the deed of a married woman. The opinion asserts that “ the lands of a married woman can be conveyed or encumbered in no other mode than that prescribed by the statute; and her agreements in relation thereto, not executed in the manner prescribed by the statute, are void;” but says that by the correction of the deed the object and policy of the statute are not contravened or thwarted, because the husband joined in the defective deed. The decision stands alone, and the reasoning upon which it is rested is not sufficiently strong and convincing to justify us in accepting the adjudication as authority. We should be better satisfied with it had the court applied another principle of equitable jurisdiction, and decreed that, because the land sold was the separate estate of the wife, and because she had received the purchase money therefor, the purchaser should have a lien upon the land purchased for the amount he paid on account of the purchase.
An article in I Cent. L. J., 182, reviews this Indiana case,
If the land which .it is-claimed should be included in the mortgage sought to be reformed in this action, was the separate estate of the wife, and especially if she had received .to her own use the money which it was given to secure, in view of our statute, which removes the disability of coverture and enables the wife to contract in respect to her separate estate the same as though she were sole, it may be that the mortgage might be reformed as against her. However, this is not here decided. Again, had not such land been a homestead, no doubt the mortgage should be reformed as to the interest therein of the husband, but not to affect the • dower right of the wife.
But the land affected by the action being a homestead, the husband was under legal disability to mortgage it without the signature of the wife to the mortgage. "Without her signature a mortgage executed by him is invalid. TIence, a reformation of the mortgage as to him, or his heir, or the devisee of the land, without reforming it at the same time as against the wife, would be wholly inoperative for any purpose.
The homestead in controversy belonged to the husband. The wife had no estate in it by virtue of the homestead right. She had only an absolute veto upon the power of her husband to alienate it, which the statute executes for her until she sees fit to- affix her signature to her husband’s conveyance of it. Godfrey v. Thornton, 46 Wis., 677. Our statute only removes
The death of Peter Petesch, and the fact that the homestead descended or was devised to his widow, are not important; neither is her subsequent marriage with the defendant Jacob Uambach, or the conveyance of the homestead to him. The case stands precisely as it would have stood had the action been brought in the life-time of Peter, against the mortgagors, and must be determined on the same principles.
We have studied attentively the very able argument of the learned counsel for the plaintiffs, and the authorities which he cites. We agree with him that on principles of natural equity the plaintiff ought to have relief, and should be better satisfied could we award it to him; but we are denied that satisfaction by inexorable rules of law, which we may not disregard. We must affirm the judgment of the circuit court.
Dissenting Opinion
I am constrained to dissent from the decision in this case. It is said that an action to reform an instrument for a mistake is in the nature of a suit for specific performance of a contract, and that no performance will be enforced against a married woman because her contracts are void. Whatever reason there may have been in this rule formerly, I think it fails upon the facts of this case, in view of the legislation of this state. The common-law disabilities of' married
I refer to this legislation for the purpose of observing that decisions in actions for the specific enforcement or reformation of contracts executed by husband and wife, where the common-law disabilities of coverture exist, are to be applied with much caution to their contracts made in this state. The property intended to be mortgaged in this case was the homestead of the husband. By our statute, a mortgage or other alienation by a married man of his homestead is not valid without the signature of the wife to the same. In Godfrey v. Thornton, 46 Wis., 677, it was held that this statute did not vest any estate in the wife, living the husband, in the homestead, but operated only as a disability of the husband, living the wife, to alienate his homestead, without her consent, evidenced by her signature to his alienation. In this case, the wife did consent to the husband’s mortgaging his homestead. She evidenced that consent by signing and acknowledging the mortgage, which, as the court below found, was intended by all parties to include the homestead.
Why, then, should not the mortgage be reformed so as to
In Schmitz v. Schmitz, 19 Wis., 207, an action was brought to correct a mistake in the description of a mortgage executed by' a husband and wife on the homestead. The mistake was corrected in the court below so as to carry out the intention of the parties to the instrument. On appeal to this court, the point was made that the mortgage could not be corrected or reformed, because it was executed by a married woman. But the court did not have occasion to pass upon the question, as it held that the evidence in the case clearly identified the
On an «qual division of the justices present and acting in the determination of the appeal, the judgment below was affirmed.