Conrad v. Schwamb

• Decision Date: 03 November 1881
• Citation: 10 N.W. 395,53 Wis. 372
• Parties: CONRAD AND OTHERS v. SCHWAMB AND ANOTHER.
• Court: Wisconsin Supreme Court

53 Wis. 372

10 N.W. 395

CONRAD AND OTHERS

v.SCHWAMB AND ANOTHER.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Washington county.

The plaintiffs, the widow and children of John Felten, deceased, brought this action to recover the S. W. 1/4 of the N. W. 1/4 of section 14, township 9, range 19, in the county of Washington. It appears from the complaint, answer, and reply to an equitable counter-claim contained in the answer, that the premises claimed were, July 10, 1863, the homestead of John Felten and his wife, who on that day executed to the defendant Schwamb a quitclaim deed, intending thereby to convey the same to him in fee, but by mistake the land was described therein as the N. W. 1/4 of the S. E. 1/4 of section 14, instead of the S. W. 1/4 of the N. W. 1/4; the latter being all of the land Felten owned in that section. Schwamb went into possession of the land claimed under such deed, and has held possession thereof by himself or tenants ever since. The defendant Lange is now in possession as tenant for years under Schwamb. The agreed consideration for the conveyance was $900, and the contract for the payment thereof is contained in the following instrument in writing, executed by Schwamb and wife to Felten:

+--------------------------------+
                ¦“$900.¦RICHFIELD, July 10, 1863.¦
                +--------------------------------+
                

“For value received, we, or either of us, jointly or severally, promise to pay to John Felten, or order, the sum of $900, current money, as soon as the said John Felten, or his legal representatives, shall have released his land (which is now sold to Ernst Schwamb, Jr.) from all encumbrances resting or being on said land, without interest, till the tenth day of July, A. D. 1865, and after said date with interest at the rate of 7 per cent. per annum; but in case that the said land shall not be released on the said tenth day of July, 1865, then shall the said John Felten only have the right to charge in the years 1866 and 1867 every year the sum of thirty dollars, ($30,) and after this said payment not a single cent more till the said land is released.”

No payment either of principal or interest has been made by Schwamb on account of such purchase. Whether or not the two payments of $30 each have been made does not appear. In 1856, Felten and wife executed a mortgage on the land claimed to the La Crosse & Milwaukee Railroad Company, for $1,000, and 8 per cent. interest thereon, payable annually, the principal to become due in 10 years, and delivered the same to a person who claimed to be the agent of the company, who caused it to be recorded in the office of the proper register of deeds. The above contract was made with Schwamb on the supposition that the mortgage was an encumbrance on the land, because of its transfer to some bona fide holder thereof, whereas in fact, as the reply alleges, it had never been delivered to the railroad company or transferred by it. So far as appears, it still remains of record, and is an apparent if not an actual encumbrance on the land claimed. Immediately after the execution of such conveyance to Schwamb, Felten removed to the state of Minnesota with his wife and children, and they resided in that state until his death. He died intestate in 1871, leaving surviving him his widow and children, who are the plaintiffs in this action. His widow and all of his children but one have continued to reside in Minnesota until the present time. When the deed to Schwamb was executed, the land claimed was, and still is, worth $1,300, and its rental value over and above taxes, from 1863 to the present time, has been and is $100 per annum. In their counter-claim the defendants pray that the deed of July 10, 1863, be reformed; that the plaintiff be barred of any interest in such land and for general relief. For reasons deduced from the above averments the plaintiffs, admitting the error in the deed, maintain that it would be inequitable to decree reformation thereof. On the pleadings (no proofs having been taken) the circuit court gave judgment for the defendants reforming the deed as prayed. Also, that the plaintiffs take nothing by their action, and for costs. The plaintiffs appeal from the judgment.Frisby, Weil & Barney, for appellants.

Jenkins, Elliott & Winkler, for respondents.

LYON, J.

The deed of 1863, executed by John Felten and wife to the defendant Schwamb, although it did not convey the land intended, must be treated in equity as an executory contract by John Felten to convey such land. Eaton v. Eaton, 15 Wis. 259;Hanson v. Michelson, 19 Wis. 495;Petesch v. Hambach, 48 Wis. 443. While the land intended to be conveyed remained the homstead of Felten and wife, the defendant could not have enforced specific performance of such executory contract, because, on the authority of the case last cited, the wife could not be compelled to sign the conveyance, and without her signature it would be void. But it was undoubtedly a valid...