Getts v. Olsen

• Decision Date: 10 February 1925
• Parties: GETTS ET AL. v. OLSEN ET AL. OLSEN v. HUMISTON ET AL.
• Court: Wisconsin Supreme Court

186 Wis. 70

202 N.W. 160

GETTS ET AL.

v.OLSEN ET AL.

OLSEN

v.HUMISTON ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Circuit Court, Dane County; Chester A. Fowler, Judge.

Action to quiet title by Norris Getts and another against A. Rosabelle Olsen and others in which defendant Olsen filed cross-complaint against defendants Kate Humiston and another. Judgment for plaintiffs, and from the judgment for defendant Olsen on cross-complaint, cross-defendants Kate Humiston and W. E. Campbell appeal. Affirmed.

This was an action to quiet title. The defendant A. Rosabelle Olsen filed a cross-complaint, against the defendants Kate Humiston and W. E. Campbell, her predecessors in title, demanding damages for breach of warranty in case title to the property was found to be in the plaintiffs, and the defendants Humiston and Campbell interposed a cross-complaint against the defendant A. Rosabelle Olsen asking for reformation of their deed to her. The case was tried before the court and judgment was entered quieting title in the plaintiffs, as demanded in their complaint, denying reformation of the deed on the cross-complaint of Humiston and Campbell, and granting judgment to the defendant Olsen for damages because of breach of warranty against the defendants Humiston and Campbell. The defendants Humiston and Campbell appeal and assign as errors: (1) That the court erred in refusing reformation of the deed as demanded in their cross-complaint; (2) in determining the damages recoverable for breach of covenant; and (3) in adjudging that appellant pay the costs and disbursements taxed against defendant A. Rosabelle Olsen in the main action.

For the purposes of this case we will assume that Main street in the village of Oregon, Dane county, Wis., runs north and south, and that Park street runs east and west, crossing Main street. The defendant Rogers, in 1905, acquired a rectangular tract of land in the southwest angle formed by Main and Park streets, running 117 feet along Park street and 93.077 feet on Main street. In the same year he deeded the north 22 feet to one Haskell. The remaining 71.077 feet he mortgaged to the Hausmann Brewing Company in the same year. In 1906 Rogers secured a release from the mortgage of the north 22 feet of said mortgaged parcel, and deeded the same to Haskell. Later the mortgage was foreclosed and Rogers bought in the property at the sale under the judgment of foreclosure. By mistake the sheriff's deed to Rogers conveyed the 22 feet which had been released from the mortgage and by him conveyed to Haskell, and the deed from the sheriff to Rogers purported to convey 71.077 feet fronting on Main street, instead of 49.077 feet. Thereafter, in October, 1919, Rogers deeded to the defendants Humiston and one Fox the property that he purchased on foreclosure sale, and by like mistake used the same erroneous description in his deed to Humiston and Fox. Fox, in October, 1920, by the same erroneous description, conveyed to Campbell. In October, 1922, defendants Humiston and Campbell conveyed said property by warranty deed to A. Rosabelle Olsen. The plaintiffs traced their title by mesne conveyances from said Haskell.Wm. R. Curkeet, W. L. Woodward, and A. T. Rogers, all of Madison, for appellants.

A. G. Michelson, of Madison (Bagley, Spohn & Reed, of Madison, of counsel), for respondent.

CROWNHART, J. (after stating the facts as above).

The real question litigated in the court below was whether or not the conveyance from defendants Humiston and Campbell to the defendant Olsen, by mutual mistake, or by mistake of grantors and fraud on the part of grantee, included in the deed a rectangular piece 22 feet by 117 feet, lying north of the rectangular property 49.077 feet by 117 feet, intended to be conveyed. It appears that during all the times in question there was a hotel situated on the property fronting on Park street 117 feet and running north on Main street 49.077 feet. On the north side of the hotel was a door, over which there was a small porch and steps extending about 3 feet north of the main building onto the 22-foot strip in dispute. To the east of the hotel, and partly on the hotel property proper, but largely on the 22-foot strip, was an old woodshed much dilapidated and not in use. Also, on the 22-foot strip was an old well used as a cesspool in connection with the hotel by an underground pipe, which was not visible. Rent had been paid by Rogers for the use of this cesspool in connection with the hotel. In the negotiations for the purchase of the property, it appears that defendant Olsen's husband represented her, and that he was familiar with the hotel property generally. One Jones acted as agent of the grantors. There was nothing said as to the exact dimensions of the real estate to be conveyed. Just before the purchase the hotel was measured on the inside by Olsen to ascertain if it would meet the requirements of the business that Olsen wished to maintain in it. He also measured the hotel dimension...