25 Wis. 517 | Wis. | 1870
In this case, a judgment having been rendered, and affirmed on appeal to this court, enforcing a specific performance of the contract between Elbridge Smith and the defendant Armstrong, and requiring the appellant “to execute and deliver to the defendant Armstrongs proper and sufficient conveyance in fee” of the property in controversy, a dispute has since arisen, the appellant claiming to have complied with the judgment on his part,-and alleging a failure to comply on the part of the defendants, and asking, for that reason, to have the judgment made absolute in his favor. He also asked to have the judgment amended so as to require him only to convey the interest which he acquired by the conveyance from Elbridge Smith and wife. Both motions were denied, and an appeal taken from each order.
In respect to the application to amend the judgment, it not being a mere clerical mistake, but a matter of substance, it is a sufficient answer to say that this very judgment having been rendered, and affirmed on appeal to this court, has become final between the parties, and even though it were conceded that there were errors in it, they are no longer subject to correction in the circuit court, under the guise of amendment.
If there were no finding in the case which supported the judgment as it is, whether the result would be different it is not necessary to determine. If such had been the case, it would have been good ground for a reversal or modification of the judgment, so as to make it conform to the finding, when it was here on appeal. And if, instead of doing that, this court had affirmed it, it would have been at least a singular exercise of the power of review to have the error subsequently corrected by amendment in the court below.
But in this case no such question is presented. There appear to be two findings in the record, one of which supports the judgment in its present form. Ánd hav
This conclusion being arrived at, it follows necessarily that the appellant did not comply with the requirements of the judgment. The deed he tendered purported to convey only the interest he had acquired from Elbridge Smith and wife. If he claimed title from any other source, he would still be at liberty to assert it, notwithstanding such a deed. It may all be true, as he claims, that the object of this suit was only to reach the interest he derived from Elbridge Smith and wife. But as he made no suggestion of any other title, and a judgment was entered requiring him to make a good and sufficient conveyance in fee, it is too late to go behind it now. The judgment can have no less effect than to require him to convey all his own title in fee, without any reservation, clear of all incumbrances by himself, and with covenants of warranty against such incumbrances.
By the Court. — Both the orders appealed from are affirmed. .
