Scheuer v. Chloupek

Winslow, J. We shall spend little time upon the questions of fact in the present case. Examination of the bill of ■exceptions satisfies us that the court was entirely justified in holding that it was clearly proven that a mutual mistake was made by Chloupek and the plaintiff at the time of the plaintiff’s purchase, and that the tract actually pointed out to the plaintiff by Chloupek and supposed- by both parties to be bought and described in the deed afterwards delivered was the tract inelilded within the dotted lines in the plat. There are two other questions in the case, however, which demand some consideration. The appellant claims that it is conclusively shown in the case that the property in question was a part of the homestead of Adolph Chloupek and Anna Chloupek at the time of the sale, and hence that equity will not reform the deed against the husband in his lifetime nor against his widow. If this fact does appear in the evidence and the evidence is properly in the case, it seems difficult to avoid the conclusion claimed. Petesch v. Hambach, 48 Wis. 448, 4 N. W. 565; Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395. The serious difficulty arises, however, upon the [77] question whether the evidence tending to show the fact of homestead was before the trial court for consideration. The fact that the premises constituted a part of the defendants’ homestead is without doubt an affirmative defense and should be pleaded in order to be available. It was not pleaded, nor did the plaintiff’s evidence show the fact. ' When the defendants took the case and attempted to introduce evidence tending to show that the whole tract was their homestead, prompt objection was made by the plaintiff on the ground that it. was incompetent, immaterial, and inadmissible under the pleadings, and the court, in substance, ruled that it was inadmissible, but that he would receive it subject to the objection, and it was distinctly stated that all evidence tending to. show homestead was only to be received subject to objection. No application was made to amend the answer, but evidence was'introduced showing that, at the time of the oral arrangement for the sale, Chloupek was keeping his stock in the barn-on the premises north of the platted portion; that he was then living in a rented house near by; that he was building a house on the premises, and intended to occupy them as his-homestead as soon as the house was finished; and that he moved into the house in November following, and afterwards occupied the whole premises as his homestead, including the platted portion and excepting the part occupied by the plaintiff. The evidence was closed and the facts argued June 27, 1903, but no application was made to amend the answer. In September and October following, written briefs were served and filed, and in the defendants’ brief, served September 17th, there was for the first time a request that the defendants’ answer be amended so as to admit the evidence if the court deemed such amendment necessary. The trial court held that in view of the fact that the plaintiff, through no. fault of his own, had expended some $1,800 on the premises and would be deprived of his home as he had prepared it and' relegated to an action for damages against the husband in case [78] the amendment were to be permitted, no amendment would be allowed at that late day because it would not be in furtherance of justice. The question here is whether it is our duty to reverse the ruling of the trial court and consider the evidence; in other words, whether the ruling was an abuse of discretion. The whole principle of the Code iindoubtedly is that amendments should be allowed liberally, that substantial rights should not be lost on account of mere failure to plead in apt terms or within the time limited by statute, if the substantial rights of the opposing party can be preserved. We should have been better pleased had the amendment been allowed and the question whether a homestead right existed determined. However, the specific objection had been promptly made early in the trial and the court had at once made a ruling showing that in his judgment an amendment was imperative. The defendants chose to stand on their pleading through the entire trial and for months after the trial had been concluded. Furthermore, it appeal’s that the defendants made a proposition of settlement by way of exchange of lots and removal of buildings and payment by plaintiff of $100, in their answer and at the opening of the trial, which the plaintiff refused to accept. It seems likely that this refusal was based partly on the failure to plead the defense of homestead. Had the defendants made their application to amend when the objection was first made and they were notified that amendment was necessary, it may well be that the plaintiff would have accepted the offer and spared himself the expense of further trial of the case. Such considerations as these in addition to those named by the trial judge induce us to hold, with some reluctance, that there was no abuse of discretion in refusing to allow the amendment. Another contention is made to the effect that it appears that Mrs. Chloupek only signed the deed as the wife of Adolph, that she received no consideration therefor, and that [79] the law will not reform a deed so as to bar her dower in land which she has never conveyed nor agreed to convey, and for which she has received no part of the consideration. There .are at least two difficulties with this proposition: First, there is neither pleading nor proof that Mrs. Chloupek received no part of the consideration, and the only evidence hearing on the subject is the recital in the deed, which acknowledges that the parties of the first part (Mr. and Mrs. Chloupek) have received the sum of $175, in consideration of which they execute the deed; second„ it appears by the stipulation filed that Mr. Ohloupek, before his death and after judgment, deeded the fee in the land in question to the defendant Anna. By accepting a deed of the fee Anna’s inchoate estate in dower was unquestionably merged in the fee. The greater and the lesser estate met in the same person with no intermediate estate between, and the lesser estate ceased to exist. Youmans v. Wagener, 30 S. C. 302, 3 L. R. A. 447, 9 S. E. 106. The defendant now h'ás only the fee, which is subject to the plaintiff’s right of reformation of his deed. By the Court. — Judgment affirmed.