Jentzsch v. Roenfanz

• Decision Date: 09 December 1924
• Citation: 201 N.W. 504,185 Wis. 189
• Parties: JENTZSCH v. ROENFANZ ET AL.
• Court: Wisconsin Supreme Court

185 Wis. 189

201 N.W. 504

JENTZSCH

v.ROENFANZ ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1924.

Appeal from Circuit Court, Milwaukee County; Otto H. Breidenbach, Judge.

Action by Friedericke Louise Jentzsch against August Roenfanz and others.Judgment for plaintiff, and certain defendants appeal.Reversed and remanded, with directions.

Action to reform deed.The controversy in this case can be much more easily understood by reference to the map, Exhibit B, reproduced herewith.

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Hawley road runs north and south; Oklahoma avenue east and west.In 1903the plaintiff was living with her husband on a part of lot 1.Adjoining this property on the east and south was lot 2 of Hegelmeyer's subdivision.The entire lot contains 8.036 acres of land.The north end fronts on Oklahoma avenue and the west end on Hawley road.The defendant, Henry J. Peters and Hulda Peters, his wife, at this time were living on Clinton street in the city of Milwaukee, some miles distant, where they were engaged in conducting a grocery business.Peters had lived on a farm until he was 18 years of age, and since that time had been engaged in the grocery business.Lot 2 was owned by a Mr. Eckel.Friedericke Jentzsch was desirous of acquiring lot 2, and her husband, acting for her, endeavored to secure ownership thereto.The price fixed by Mr. Eckel could not be met by the Jentzsches, and they solicited the purchase of that part fronting on Hawley road by Henry J. Peters, who was a brother-in-law.The price given by Mr. Eckel was $350 per acre or $1,050 for the three acres fronting on Hawley road and $300 an acre for that fronting on Oklahoma avenue.After some negotiations the parties met at the office of Louis Fulner, a notary public, who drew the papers.Eckel conveyed his entire interest in lot 2 to Friedericke Jentzsch.She then conveyed the “south three acres of lot 2” to Henry J. Peters, and it is undisputed that he paid $1,050, which passed directly to Eckel.The five-acre portion was paid for, $500 in cash and by the assumption of a $1,000 mortgage, which was then a lien against lot 2.Shortly thereafter Mr. Jentzsch took an old abstract to an abstract company, and ordered an extension thereof as to the south three acres of lot 2, which abstract was delivered to Peters.Jentzsch continued to occupy the entire premises and occupied a portion thereof conveyed to Peters under a lease.A family dissension brought an end to their friendly relations, and in subsequent years the the premises were occupied by tenants of Peters.Shortly after the trouble between the two families Jentzsch constructed a fence, which was an extension of the east line of lot 1 to the south line of lot 2, indicated on the diagram as “disputed fence” and thereafter Peters and his tenants occupied and worked that part of lot 2 lying west of the east line of lot 1.This situation continued until 1921, when the defendant, August Roenfanz became interested in the property and purchased the Peters interest, it being conveyed to him as the south three acres of lot 2.In May, 1921, the property was surveyed and the true boundaries of the south three acres were for the first time staked out and established.Roenfanz thereupon requested Jentzsch to remove the disputed fence.This Jentzsch refused to do. and thereupon Roenfanz removed the fence.Roenfanz received his title from Hulda Peters, wife of Henry J. Peters, who had become the owner thereof by mesne conveyances.

This action was begun, and in the complaint it was alleged that the plaintiff is the owner in fee simple of said lot 2, except that portion thereof described as follows, to wit:

“Commencing at the southwest corner of said lot, thence east along the south line of said lot a distance of 519.13 feet to a point, said point being at the intersection of said south line with the westerly boundary line of the northerly portion of said lot 2, if extended; thence north along said line so extended a distance of 188.02 feet to the intersection of said line with the north line of the south portion of said lot (which south portion fronts upon the Hawley road on the west); thence west along the north line of said south portion of said lot to the west line of said south portion of said lot; thence south on said west line to the point of commencement.”

It is then alleged that on November 17, 1903, the plaintiff sold and attempted to convey that portion of lot 2 described as above.It is further alleged:

“That by the mutual mistake of said parties, the conveyance of said premises intending to convey the same from the plaintiff to said defendantHenry J. Peters erroneously described said lands as ‘the south three acres of lot 2.’ ”

The complaint asks that the deed be reformed so that the description therein would conform to that hereinbefore set out.The defendants answered,...