Post v. Campbell

• Decision Date: 30 April 1901
• Citation: 110 Wis. 378,85 N.W. 1032
• Parties: POST v. CAMPBELL.
• Court: Wisconsin Supreme Court

110 Wis. 378

85 N.W. 1032

POST

v.CAMPBELL.

Supreme Court of Wisconsin.

April 30, 1901.

Appeal from circuit court, Walworth county; Frank M. Fish, Judge.

Suit by Ida L. Post against Robert Campbell. From a decree in favor of the plaintiff, the defendant appeals. Affirmed.

The complaint in the first instance was in form to remove a cloud upon title to real estate. It stated in substance that plaintiff was the owner in fee simple of the land described in the complaint; that defendant claimed to own the same under a deed from Rebecca Campbell, good upon its face, but that it was never delivered to the grantee. There was the usual prayer appropriate to such an action. The answer denied the material allegations of the complaint and alleged actual ownership and possession under the disputed deed. By leave of court and against objection by defendant's counsel the complaint was amended by alleging, in substance, that March 16, 1881, Thomas Fryer's family consisted of himself, Rebecca Fryer, his wife, and plaintiff, his only child, then 15 years of age; that he was the owner of the real estate in question; that he was in poor health, and, fully realizing the uncertainty of his life, he formed the purpose to so dispose of said real estate that his wife should have it for her life with power to use so much of the value thereof as should be necessary for her comfortable maintenance and support, and that the residue, if any, should go to plaintiff; that his wife was fully informed of such purpose and with that in mind proposed that a conveyance of an absolute title to the property should be made to her, promising her husband that if he would not make a will to effect his purpose, but would so convey the property, she would give effect to his wishes by using only so much thereof as should be necessary for her support, leaving the remainder to plaintiff; that, relying on such promise, Mr. Fryer conveyed the property to his wife, intending thereby that the grantee should enjoy it for life with the right to sell the same and use the proceeds so far as necessary for her support, and that the balance, if any remained at the termination of Mrs. Fryer's life, should go to plaintiff; that subsequently Mr. Fryer died and about one year thereafter his widow became the wife of defendant; that June 21, 1895, thereafter, she died; that December 28, 1894, defendant induced his wife, by undue influence, to deed said real estate to him, but that the deed was never actually delivered so as to take effect; that he obtained possession thereof after the death of his wife and recorded it, and thereafter set up a claim to the property thereunder.

Except as hereafter stated, the court found the material allegations of the complaint to be true. There was no finding as to the nondelivery of the deed or its having been obtained by defendant by undue influence. The conclusions of law were to the effect that defendant had no right, title or interest in the premises in controversy; that plaintiff was the owner in fee thereof and entitled to possession of the same, and that her title should be quieted and perfected as against defendant and all persons claiming under him. Judgment was rendered accordingly.E. H. Sprague and A. L. Sanborn, for appellant.

D. B. Barnes, Jay F. Lyon, and J. B. Simmons, for respondent.

MARSHALL, J. (after stating the facts).

The following questions are presented: Did the court err in allowing the amendment? Was it error to overrule an objection to any evidence under the amended complaint? Did the evidence disclose equities in favor of appellant, or wrongdoing by respondent militating against her right to the relief granted? Was the limitation of the right of respondent's mother to the property void?

In considering the first question we shall assume, without deciding, that the amended complaint did not change the class to which the action belonged; that is, that the original complaint stated a cause of action in equity to establish plaintiff's right to the property in controversy, and that the amended complaint stated such a cause for the same purpose, though that the former was to remove a cloud upon plaintiff's alleged right and the latter to establish such right and to charge appellant as trustee of the title for the rightful owner so far as it had become vested in him. The real subject of the action, the title to the land, and the remedy, were the same under the amended as under the original complaint, though the material facts were changed, and the character of the evidence required to render the remedy resorted to effective was also changed. Counsel for appellant make no claim, as we understand it, that there was abuse of discretion in permitting the amendment if power existed in that regard; but they insist that such power did not exist; that the statute limiting the right of amendment of pleadings in cases where the exercise of it will not change substantially the claim or defense, means will not change the facts constituting the cause of action or defense thereto so as to require substantially different proof. To that many cases decided by this court are cited. An examination of them discloses that they do not deal with the question of power, but with the proper exercise thereof.

Section 2830, Rev. St. 1898, provides that, the court may, upon the trial or at any time in furtherance of justice and upon such terms as may be just, permit a complaint to be amended in any respect that does not change substantially the plaintiff's claim. That has had judicial construction many times to the effect that the limit of the power of amendment is only exceeded by a departure from the subject of the action. A substantial change of the “claim,” as the term is used in the statute, need only stop short of the substitution of one cause of action for another, as the substitution of a cause of action in equity for one at law or one sounding in tort for one on contract. Carmichael v. Argard, 52 Wis. 607, 9 N. W. 470;Lawe v. Hyde, 39 Wis. 345;Lane v. Cameron, 38 Wis. 603;Board v. Decker, 34 Wis. 378;Fischer v. Laack, 76 Wis. 313, 45 N. W. 104. The following language used by Mr. Justice Lyon in the last case cited, clearly indicates the proper construction of the statute as it has been uniformly declared: “Were this an action in equity, we should grant leave to the circuit court, on a proper showing, to permit the complaint to be amended by inserting the proper averments to entitle the plaintiff to a reformation of the deed. But it is an action at law, and an amendment which would change it into one in equity is not admissible.” So the only limitation upon the power of amendment within the general scope of the subject of the action, broadly considered, is that it must be in furtherance of justice, upon reasonable grounds, in the sense that such must be the purpose of the exercise of the power. Within those limits the discretionary power of trial courts to grant amendments to pleadings is supreme. Outside thereof there is no power to permit amendments at all, because then judicial action would either be outside the scope of the statute or...