Gotfredson Bros. Co. v. Dusing

• Decision Date: 31 January 1911
• Parties: GOTFREDSON BROS. CO. v. DUSING ET AL.
• Court: Wisconsin Supreme Court

145 Wis. 659

129 N.W. 647

GOTFREDSON BROS. CO.

v.DUSING ET AL.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Calumet County; George W. Burnell, Judge.

Action by Gotfredson Brothers Company against Charles J. Dusing and others. From a judgment dismissing the complaint as to defendant Amanda Dusing, plaintiff appeals. Affirmed.

Action for the reformation and foreclosure of a mortgage. August 16, 1906, the defendants Charles J. Dusing and his wife, Amanda Dusing, for the purpose of securing a pre-existing indebtedness due from Charles J. Dusing to the plaintiff, executed a mortgage intended and supposed to cover their homestead. By mistake of all parties, other lands, and not the homestead, were described in the mortgage. The wife, who was not possessed of any separate estate, appeared and objected to a reformation of the mortgage and sale of the homestead. From a judgment refusing reformation and dismissing the complaint as to the wife, the plaintiff appealed.Minahan & Minahan, for appellant.

Nash & Nash, for respondents.

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

The question presented by this appeal is: Can a description in a mortgage be corrected in an action to reform the instrument so as to include the homestead of the mortgagors, who were husband and wife at the time of the execution thereof? In the cases of Petesch v. Hambach, 48 Wis. 443, 4 N. W. 565,O'Malley v. Ruddy, 79 Wis. 147, 48 N. W. 116, 24 Am. St. Rep. 702, and Cumps v. Kiyo, 104 Wis. 656, 80 N. W. 937, this court held that it could not. We are urged to overrule these decisions because they were made without reference to section 2257, St. 1898, which it is claimed gives the court such power. That section provides: “The circuit court of any county in which a conveyance of real estate shall have been recorded may make an order correcting the description in such conveyance on proof being made to the satisfaction of the court that such conveyance contains an erroneous description, not intended by the parties thereto; or when the description is ambiguous and does not clearly or fully describe the premises intended to be conveyed, if the grantor therein is dead or a nonresident of the state and the person to whom it was made, his heirs, legal representatives or assigns have been in the quiet, undisturbed and peaceable possession of the premises intended to be conveyed for the term of ten years or more; but this section shall not prevent an action for the reformation of any conveyance, and if in any doubt the court shall direct such action to be brought.” It is clear that the conditions under which the order therein provided for may be made do not apply to this case. Here the grantors are neither dead nor nonresidents of the state, and the grantee has never been in possession of the premises conveyed. Moreover, the statute was in existence when the cases mentioned were decided, and the reason it was not therein referred to was no doubt because it in no way relates to an action for reformation.

The policy of the law and the reasons for refusing reformation are so fully set forth in the cases above referred to that a restatement thereof is not deemed necessary. In the case of O'Malley v. Ruddy, supra, the court refused reformation even though the wife by her answer consented thereto, on the ground that the statute had provided for no such mode of alienation of a homestead; that nothing less than her signature on the instrument of conveyance was effectual. No valid reason has been called to our attention why we should overrule those cases, and we must decline to do so.

But it is urged that the amendment of section 2203, St. 1898, by chapter 45, Laws 1905, destroys the reasons for the rule laid down in the cases cited,...