Lavassar v. Washburne
| Citation | 6 N.W. 516,50 Wis. 200 |
| Parties | LAVASSAR v. WASHBURNE |
| Decision Date | 21 September 1880 |
| Court | United States State Supreme Court of Wisconsin |
Argued September 3, 1880
APPEAL from the Circuit Court for Door County.
This action was brought to set aside a conveyance of land executed by plaintiff and her husband to the defendant. It is alleged in the complaint that the defendant induced the grantors to execute the conveyance by means of the false and fraudulent pretense and representation that it only corrected certain mistakes in former conveyances, by the same grantors, to certain grantors of the plaintiff, whereas it purports to convey land not intended to be included in such former conveyances.
The circuit judge found that the complaint was proved, and gave judgment for the relief demanded therein. Defendant appealed from the judgment.
Judgment reversed and cause remanded.
For the appellant there was a brief by Hastings & Greene, of counsel and oral argument by Mr. Hastings.
The cause was submitted for the respondent on the brief of O. E Dreutzer and Tracy da Bailey.
The rule so often laid down by this court, that, to justify the court in reforming a written instrument on the ground that it does not correctly state the intentions of the parties, the evidence of the mistake must be clear and convincing, is applicable to a case wherein it is sought to cancel or rescind the instrument for fraud. 1 Story's Eq. Jur § 694a, and cases cited. It was said in Howland v. Blake, 97 U.S. 624, 24 L.Ed. 1027 (), that "a judgment of the court, a deliberate deed or writing, is of too much solemnity to be brushed away by loose and inconclusive evidence." Indeed, the general rule of law, applicable to all classes of cases in which fraud in fact is asserted, is that the fraud "must be proved by clear and satisfactory evidence." Fick v. Mulholland, 48 Wis. 413, 4 N.W. 346.
The following are some of the cases in this court in which the rule of evidence in actions to reform or rescind deeds and other written instruments for different causes, or to vary their terms by parol proof, has been considered and applied. They are cited here, not because the rule needs the support of a multitude of cases, for it is elementary, but only for convenience of reference: Blanchard v. McDougal, 6 Wis. 167; Newton v. Holley, id., 592; Lake v. Meacham, 13 Wis. 355; Fowler v. Adams, id., 458; Harrison v. The Juneau Bank, 17 Wis. 340; Tiernan v. Gibney, 24 Wis. 190; Ledyard v. Ins. Co., id., 496; Kent v. Lasley, id., 654; Knoll v. Harvey, 19 Wis. 99; McClellan v. Sanford, 26 Wis. 595; Kercheval v. Doty, 31 Wis. 491; Harter v. Christoph, 32 Wis. 245; Mackey v. Stafford, 43 Wis. 653; Sable v. Maloney, 48 Wis. 331, 4 N.W. 479; Du Pont v. Davis, 35 Wis. 631.
Within the above rule, is the fraud charged in the complaint sufficiently proved to sustain the judgment? After a careful examination of the testimony we are compelled to answer the question in the negative. The negotiations which resulted in the execution of the conveyance sought to be avoided, were all between the defendant and the plaintiff's husband and agent. She had little or no part in the transactions further than to execute the conveyance, which she did pursuant to her husband's advice. She is bound, therefore by his acts, and the case stands as it would have stood had the husband been the owner of the land in controversy and the plaintiff in the action. The husband of the plaintiff testifies that the conveyance was intended only to correct certain alleged inaccuracies in two former conveyances, executed by himself and wife, of lands which the defendant subsequently purchased;...
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