Rist v. Porter

Rosenberry, J. Appellant’s brief contains no assignments of error. The rule requiring that error be assigned is not a mere formality, and in this case we are left to con [221] jecture from the argument as to the nature of the error claimed by the appellant. If we are not able to gather from the brief a correct idea of appellant’s position, it will not be the fault of the court. Apparently the claim is that the evidence does not support the findings of the trial court that the defendant agreed to convey to the plaintiff the property which she inherited from her mother. It appears from the findings of fact that the plaintiff executed a quitclaim deed to the south half of lot 1 and the north thirty and one-half feet of lot 4 and deposited the same with the clerk of the court, which leaves the ownership of the south eleven and one-half feet of the tract owned by the plaintiff in him. There is but a single fact in the record which tends to support the finding of the trial court that the defendant agreed to convey the property which she in-, herited from her mother to the plaintiff, and that is that the plaintiff went into possession of the property, but when other undisputed facts appear, the act of the plaintiff in going into possession loses its significance. It appears almost without dispute that both parties, at the time of making the oral agreement, were of the opinion that the plaintiff had an estate by the curtesy in the premises owned by his deceased wife and the transaction was made by both parties upon that understanding. The plaintiff upon the trial still claimed that he had that right, although it was abrogated by his remarriage by ch. 31 of the Laws of 1921. This mutual mistake as to the law no doubt accounts for the failure of either party to mention the matter in the course of their negotiations which led up to the making of the deed in 1924. The evidence which sustains the finding that the plaintiff agreed to convey the north ninety-six feet six inches of the tract owned by him is practically without dispute. Prior to going to the scrivener he measured out, with the aid of his grandson, the amount of land he was willing to deed and staked the new line. The change in the line of the property was due to the fact that the old boundary line ran through one of the houses [222] which was built on the line between the property formerly owned by Adda M. Rist and the property owned by the plaintiff, and was intended to be on the land of Adda M. Rist at the time it was built. The line was moved eleven and one-half feet north so-as to embrace the land upon which that house stood. The defendant has been in possession of the premises intended to be conveyed to the defendant at and since the making and delivery of the erroneous deed. We need not restate the fundamental principles underlying the right of parties to specific performance. Both parties are here in a court of equity demanding the exercise of that remedy in their behalf, the plaintiff as complainant and the defendant under her counterclaim. As already stated, there is no evidence of an agreement of the defendant to convey to the plaintiff, both parties supposing that the plaintiff had a life estate in- the lands owned by the defendant. The court cannot make a new agreement for the parties, nor can it in the exercise of its discretion gather into the case outside equities. Pomeroy, Spec. Perf. (3d ed.) §§ 36 and 38. While the court may not make contracts for parties, it may in a proper case, by applying the maxim that “He who seeks equity must do equity,” so condition the relief to which a party is entitled as to relieve other parties from hardship. Pomeroy, Spec. Perf. (3d ed.)' § 43. See, also, 6 Page, Contracts' (2d ed.) p. 3368 and cases cited. Here the controversy is between father and daughter, both of whom acted upon a mistaken notion as to the law governing their rights. While mistake of law does not of itself defeat the right of the opposite party to have a contract specifically performed, it may produce a situation which appeals very strongly to the conscience of the chancellor. ■ We conclude that the defendant is entitled to a judgment reforming the deed executed by the plaintiff on October 22, 1924, so as to describe the north ninety-six feet six inches of the tract owned by the plaintiff. This relief to which the [223] defendant is entitled, however, is conditioned as follows: if the plaintiff, shall elect, within twenty days after notice of filing of the remittitur of this case in the office of the clerk of the circuit court for Green Lake county, to execute and deliver to the clerk of the circuit court a good and sufficient deed in fee simple of the entire tract owned by him, including the eleven feet six inches not intended to be included in the deed of October 22, 1924, the defendant shall not be entitled to a delivery of the conveyance so executed by the plaintiff, if one be executed, unless and until the defendant shall first execute and deliver to the clerk of the circuit court for the benefit of the plaintiff a-conveyance in the usual form conveying to the plaintiff a life estate not only in the lands which she inherited from her mother but in the eleven feet six inches voluntarily included by the plaintiff in the deed executed by him and delivered to the clerk, so that when the transaction is completed the defendant will presently have unincumbered title to the north ninety-six and one-half feet of the premises owned by the plaintiff and title to the south one hundred one and one-half feet of lot 4, subject to the life estate of the plaintiff. If the plaintiff shall neglect or refuse to deliver such a conveyance, the defendant shall, upon the expiration of twenty days, be entitled to judgment reforming the deed of October 22, 1924, as hereinbefore indicated upon payment of any part of the remainder of $90 after the adjustment of taxes as indicated in the conclusions of law. If the court had power to require the parties to carry out this conditional arrangement it would direct it to be done, but the eleven and one-half feet were apparently not considered by the parties, and such evidence as there is indicates quite clearly that the plaintiff did not intend' to include it in the conveyance of October 22, 1924. TRe plaintiff no doubt has it within his power -to procure the execution and delivery of the conveyance of a complete and an unin-cumbered title, subject of course to any incumbrance placed on or suffered by the defendant, and if he fails to do so the [224] responsibility for the failure must rest with him. The equities of each party spring from a single transaction or series of transactions that arise from matters that are well within the issues in this case, and while the situation presented by the record in this case is unusual, that fact should not prevent such an application of well established equitable principles as will lead to a right result. For the property to remain in such a situation that one party to the controversy owns a part of a building and the other party the other part is simply to leave a situation which would be intolerable to both parties. On the other hand, to deprive the plaintiff of the interest which he supposed he had in the property of his deceased wife, and upon the basis of which he made the agreement with the defendant, without giving him an opportunity to adjust the matter equitably, would seem to be unnecessarily harsh. By the Court. — The judgment appealed from is reversed, and cause remanded with directions that the matter be disposed of as indicated in this opinion.