Ingles v. Merriman

Winslow, J. Ro exceptions to the findings of fact or conclusions of law were preserved in the bill of exceptions; hence the only question before us is whether the pleadings and findings sustain the judgment. Wille v. Bartz, 88 Wis. 424. This seems a very appropriate case for the exercise of the remedial powers of a court of equity. In effect, it is an action for the reformation of deeds. The plaintiff purchased her land in August, 1894. Both she and her grantors purchased and took possession of a certain tract of land, ten rods by sixteen rods, on the north end of the block, which they supposed was correctly described in their deeds. In fact, it was correctly described according to the unrecorded plat which was used in making the various conveyances, but incorrectly described according to the recorded plat which must govern. The same state of facts existed with reference to the deeds and the purchase and possession of the grantors of the defendant. They bought and occupied the balance of the block on the south under a description correct according to the unrecorded plat, and incorrect according to the recorded plat. The defendant purchased knowing [405] of the mistake in the descriptions, and of the extent of the occupation of the various grantors. To say that the defendant can now claim and hold the lands included within the calls of her deed according to the recorded plat, when she knew as matter of fact, at the time of her purchase, that such calls referred to the unrecorded plat, would be to allow justice to miscarry most grievously. The circuit court rightly held that a court of equity would set right the errors and compel the execution of the necessary conveyances to accomplish that result. Courts will correct and reform descriptions in deeds not only where the mistake consists of the insertion or omission of words, but also where the parties understood the language of the deed, and believed it corresponded with the actual boundaries of the land, but were mistaken. Bush v. Hicks, 60 N. Y. 298. And such errors may be corrected as between subsequent grantees with notice as well as between the original parties. May v. Adams, 58 Vt. 74; Warburton v. Lauman, 2 G. Greene, 420. The tax deed covering the south half of lot 4, which the defendant bought in 1894, just before she purchased the south half of lots 4 and 7, plainly does not help her, because she then knew of the errors in the numbering of the lots, both in the conveyances and in the tax proceedings, and under these circumstances her purchase of the certificates would amount simply to payment of her own taxes. Upon the1 defendant’s appeal the judgment must be affirmed. The plaintiff appeals because costs were not allowed her. The allowance of costs was within the discretion of the trial court. This discretion is a legal discretion. R. S. sec. 2918. Costs are not to be refused to the prevailing party in the absence of special circumstances reasonably sufficient to require a departure from the ordinary rule. Spengler v. Hahn, 95 Wis. 472. We suppose costs were refused here because the plaintiff did not tender her deed before action com [406] menced, but waited until the trial of the action. The rule is well known that in equitable actions, where a tender of money is essential, if the plaintiff makes no tender before action brought it will generally defeat his right to recover costs. The cases are analogous, and we cannot say that there was an abuse of discretion in refusing the plaintiff costs. By the Oouri.— Judgment affirmed on both appeals.