LyoN, J.
An essential condition upon which a court of equity will reform a written instrument is, that the parties thereto have made a binding contract, which they mutually agreed to incorporate in the instrument, but which, through [447]*447fraud, or mistake, they failed to do. The original contract must he valid, or no reformation of the instrument will be decreed, however clearly the mistake be established. It was said by Lord Habdwicke, in Henkle v. The Royal Ex. Assurance Company, 1 Ves. Sen., 317, that if the contract relates to an illicit subject, the relief will not be granted. In Eaton v. Eaton, 15 Wis., 259, this court refused to reform a voluntary deed by compelling the grantors to affix a seal. Mr. Justice Paine, delivering the opinion of the court, said: “It is well settled that equity will not interfere to enforce a voluntary contract to convey. Smith v. Wood, 12 Wis., 382. A defective attempt to malte a voluntary conveyance stands tcpon the same ground.”
In the opinion by Dixon, O. J., in Hanson v. Michelson, 19 Wis., 498, it is said: “It is a familiar rule that a de-’ fective deed may be treated in equity as an agreement to convey, and performance enforced; and where it is, we think, as was held in Eaton v. Eaton, that it stands on the same footing as an executory contract to convey, and that it will not be carried into effect by a court of equity if it appears to have been made without consideration.” In the late case of Sherwood v. Sherwood, 45 Wis., 357, the power of 'the court to correct a mistake in a will was denied. One of the grounds of the judgment is thus stated: “The reason why courts of equity will not interfere in such cases seems to be, that an action to reform a written instrument is in the nature of an action for specific performance, and the making of a will being a voluntary act there is no consideration, as in actions to reform deeds or contracts, to support the action. Hence it is said in a note by the editor of Wigram’s Treatise on Extrinsic Evidence in Aid of Wills, that 1 volunteers under wills have no equity whereon to found a suit for specific performance.’ ” In Hunt v. Rousmaniere’s Adm’rs, 1 Pet., 1, it is said that “ the execution of agreements fairly and legally entered into is one of the peculiar branches of equity jurisdiction; and if [448]*448the instrument wbicb is intended to execute tbe agreement be from any cause insufficient for that purpose, the agreement remains as much unexecuted as if one of the parties had refused altogether to comply with his engagement; and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case as well as,the other, by compelling the delinquent party to perform his agreement according to the terms of it, and to the manifest intention of the parties.” (page 13.)
The above citations, which might be increased almost indefinitely, are sufficient to show that an action to reform a written instrument is in the nature of an action for specific performance, and relief is granted therein on the same principles. Also that an instrument not founded upon sufficient •consideration — that is, a mere voluntary instrument — will not be reformed; neither will an instrument be reformed to express a contract which originally was nudum pactum. Indeed, the authorities on this subject, both in this country and in England, all seem to be one way.
There has been some conflict of decision in the application of the principles above stated to cases where the contract omitted from, but sought to be embodied in, the reformed instrument, was, while resting in parol, void by the statute of frauds. Such a case would arise, if, from a conveyance executed in attempted compliance with a parol contract for the sale and purchase of land, the land intended, or some part thereof, should be omitted by mistake.
In Massachusetts and Maine, and perhaps in some other states, it has been held that the conveyance cannot be reformed unless there is a valid, to wit, a written, executory contract of sale to reform by. Glass v. Hulbert, 102 Mass., 24; Elder v. Elder, 10 Me., 80. To the same effect are the cases of Osborn v. Phelps, 19 Conn., 63, and Best v. Stow, 2 Sandf. Ch., 298. Some of these cases concede the right of the defendant resisting specific performance to show by parol that [449]*449the instrument sought to be enforced does not correctly express the agreement of the parties, but deny the same right to a plaintiff seeking reformation of an instrument.
It is said by Professor Pomeroy, in his late tz-eatise on the specific pei’formanee of contracts, that the preponderance of judicial authoiity in this country supports the opposite doctrine, to wit, that the statute of frauds is no impediment to the reformation of a conveyance; and in his notes to section 204, he cites numerous cases ip support of that proposition. But the learned author states (no doubt correctly) the ground upon which these decisions rest. lie says: “ The statute of frauds is no real obstacle in the way of administering equitable remedies, so as to promote justice and prevent wrong. Equity does not deny or ovemule the statute; but it declares that fraud — and the same is true of mistake — creates obligation and confers remedial rights which are not within the statutory prohibition — in respect to them the statute is uplifted.” Section 266, page 350.
This is but another inode of saying that, notwithstanding the statute of frauds, there is in such a case a valid and binding executory contract, which the parties intended and attempted to embody in the instrument sought to be reformed, but failed to do so. Hence the cases which uphold the reformation of written instruments in proper cases, without regard to the statute of frauds, are in entire harmony with the rule above stated that there must be a valid binding contract to reform by, or reformation will not 'be decreed.
In general, by the principles of the common law, a feme covert can do no act to bind herself; she is said to be sub fotestate viri, and subject to his will and control. Her acts are not, like those of infants and some other disabled persons, voidable only, but ai’e, in general, absolutely void ab initio. Elliott v. Peirsol, 1 Peters, 338. Because of her disability to contract, it has uniformly been held that if a wife join her husband in the executipn of a defective conveyance, such con[450]*450veyance cannot be reformed as to her, unless by virtue of an express statute. The cases to this effect will be found cited in the argument of counsel for the defendants.
Hamar v. Medsker, 60 Ind., 413, is relied upon by counsel for appellant to sustain this action. In that case a married woman owned land in her own right, sold it, and received the purchase money therefor. She executed a conveyance to the purchaser, in which her husband joined, but by mistake the land actually sold was not described therein. A statute of that state is as follows: “No lands of any married woman shall be liable for the debts of her husband; but such lands' and the profits therefrom shall be her separate property, as fully as if she was unmarried; provided;, that such wife shall have no power to encumber or convey such lands, except by deed, in which her husband shall join.”
The action was to reform the deed so that it should convey the land actually sold, and it was so reformed.
Free access — add to your briefcase to read the full text and ask questions with AI
LyoN, J.
An essential condition upon which a court of equity will reform a written instrument is, that the parties thereto have made a binding contract, which they mutually agreed to incorporate in the instrument, but which, through [447]*447fraud, or mistake, they failed to do. The original contract must he valid, or no reformation of the instrument will be decreed, however clearly the mistake be established. It was said by Lord Habdwicke, in Henkle v. The Royal Ex. Assurance Company, 1 Ves. Sen., 317, that if the contract relates to an illicit subject, the relief will not be granted. In Eaton v. Eaton, 15 Wis., 259, this court refused to reform a voluntary deed by compelling the grantors to affix a seal. Mr. Justice Paine, delivering the opinion of the court, said: “It is well settled that equity will not interfere to enforce a voluntary contract to convey. Smith v. Wood, 12 Wis., 382. A defective attempt to malte a voluntary conveyance stands tcpon the same ground.”
In the opinion by Dixon, O. J., in Hanson v. Michelson, 19 Wis., 498, it is said: “It is a familiar rule that a de-’ fective deed may be treated in equity as an agreement to convey, and performance enforced; and where it is, we think, as was held in Eaton v. Eaton, that it stands on the same footing as an executory contract to convey, and that it will not be carried into effect by a court of equity if it appears to have been made without consideration.” In the late case of Sherwood v. Sherwood, 45 Wis., 357, the power of 'the court to correct a mistake in a will was denied. One of the grounds of the judgment is thus stated: “The reason why courts of equity will not interfere in such cases seems to be, that an action to reform a written instrument is in the nature of an action for specific performance, and the making of a will being a voluntary act there is no consideration, as in actions to reform deeds or contracts, to support the action. Hence it is said in a note by the editor of Wigram’s Treatise on Extrinsic Evidence in Aid of Wills, that 1 volunteers under wills have no equity whereon to found a suit for specific performance.’ ” In Hunt v. Rousmaniere’s Adm’rs, 1 Pet., 1, it is said that “ the execution of agreements fairly and legally entered into is one of the peculiar branches of equity jurisdiction; and if [448]*448the instrument wbicb is intended to execute tbe agreement be from any cause insufficient for that purpose, the agreement remains as much unexecuted as if one of the parties had refused altogether to comply with his engagement; and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case as well as,the other, by compelling the delinquent party to perform his agreement according to the terms of it, and to the manifest intention of the parties.” (page 13.)
The above citations, which might be increased almost indefinitely, are sufficient to show that an action to reform a written instrument is in the nature of an action for specific performance, and relief is granted therein on the same principles. Also that an instrument not founded upon sufficient •consideration — that is, a mere voluntary instrument — will not be reformed; neither will an instrument be reformed to express a contract which originally was nudum pactum. Indeed, the authorities on this subject, both in this country and in England, all seem to be one way.
There has been some conflict of decision in the application of the principles above stated to cases where the contract omitted from, but sought to be embodied in, the reformed instrument, was, while resting in parol, void by the statute of frauds. Such a case would arise, if, from a conveyance executed in attempted compliance with a parol contract for the sale and purchase of land, the land intended, or some part thereof, should be omitted by mistake.
In Massachusetts and Maine, and perhaps in some other states, it has been held that the conveyance cannot be reformed unless there is a valid, to wit, a written, executory contract of sale to reform by. Glass v. Hulbert, 102 Mass., 24; Elder v. Elder, 10 Me., 80. To the same effect are the cases of Osborn v. Phelps, 19 Conn., 63, and Best v. Stow, 2 Sandf. Ch., 298. Some of these cases concede the right of the defendant resisting specific performance to show by parol that [449]*449the instrument sought to be enforced does not correctly express the agreement of the parties, but deny the same right to a plaintiff seeking reformation of an instrument.
It is said by Professor Pomeroy, in his late tz-eatise on the specific pei’formanee of contracts, that the preponderance of judicial authoiity in this country supports the opposite doctrine, to wit, that the statute of frauds is no impediment to the reformation of a conveyance; and in his notes to section 204, he cites numerous cases ip support of that proposition. But the learned author states (no doubt correctly) the ground upon which these decisions rest. lie says: “ The statute of frauds is no real obstacle in the way of administering equitable remedies, so as to promote justice and prevent wrong. Equity does not deny or ovemule the statute; but it declares that fraud — and the same is true of mistake — creates obligation and confers remedial rights which are not within the statutory prohibition — in respect to them the statute is uplifted.” Section 266, page 350.
This is but another inode of saying that, notwithstanding the statute of frauds, there is in such a case a valid and binding executory contract, which the parties intended and attempted to embody in the instrument sought to be reformed, but failed to do so. Hence the cases which uphold the reformation of written instruments in proper cases, without regard to the statute of frauds, are in entire harmony with the rule above stated that there must be a valid binding contract to reform by, or reformation will not 'be decreed.
In general, by the principles of the common law, a feme covert can do no act to bind herself; she is said to be sub fotestate viri, and subject to his will and control. Her acts are not, like those of infants and some other disabled persons, voidable only, but ai’e, in general, absolutely void ab initio. Elliott v. Peirsol, 1 Peters, 338. Because of her disability to contract, it has uniformly been held that if a wife join her husband in the executipn of a defective conveyance, such con[450]*450veyance cannot be reformed as to her, unless by virtue of an express statute. The cases to this effect will be found cited in the argument of counsel for the defendants.
Hamar v. Medsker, 60 Ind., 413, is relied upon by counsel for appellant to sustain this action. In that case a married woman owned land in her own right, sold it, and received the purchase money therefor. She executed a conveyance to the purchaser, in which her husband joined, but by mistake the land actually sold was not described therein. A statute of that state is as follows: “No lands of any married woman shall be liable for the debts of her husband; but such lands' and the profits therefrom shall be her separate property, as fully as if she was unmarried; provided;, that such wife shall have no power to encumber or convey such lands, except by deed, in which her husband shall join.”
The action was to reform the deed so that it should convey the land actually sold, and it was so reformed. There was no argument by counsel against the power of the court to correct a mistake in the deed of a married woman. The opinion asserts that “ the lands of a married woman can be conveyed or encumbered in no other mode than that prescribed by the statute; and her agreements in relation thereto, not executed in the manner prescribed by the statute, are void;” but says that by the correction of the deed the object and policy of the statute are not contravened or thwarted, because the husband joined in the defective deed. The decision stands alone, and the reasoning upon which it is rested is not sufficiently strong and convincing to justify us in accepting the adjudication as authority. We should be better satisfied with it had the court applied another principle of equitable jurisdiction, and decreed that, because the land sold was the separate estate of the wife, and because she had received the purchase money therefor, the purchaser should have a lien upon the land purchased for the amount he paid on account of the purchase.
An article in I Cent. L. J., 182, reviews this Indiana case, [451]*451and points out with clearness and force the fallacy of the argument upon which the decision is rested, and the unsoundness of the decision. This article also cites many cases on the general question, which it has not been thought necessary to cite in this opinion. Other articles on the subject are contained in the same periodical in vol. 7, p. 434, and vol. 8, p. 42, maintaining, with considerable ingenuity of argument, the doctrine of. the. Indiana case. Eut we think the writers have signally failed to give any sufficient reason for destroying the old and well established landmarks of the law in this behalf.
If the land which .it is-claimed should be included in the mortgage sought to be reformed in this action, was the separate estate of the wife, and especially if she had received .to her own use the money which it was given to secure, in view of our statute, which removes the disability of coverture and enables the wife to contract in respect to her separate estate the same as though she were sole, it may be that the mortgage might be reformed as against her. However, this is not here decided. Again, had not such land been a homestead, no doubt the mortgage should be reformed as to the interest therein of the husband, but not to affect the • dower right of the wife.
But the land affected by the action being a homestead, the husband was under legal disability to mortgage it without the signature of the wife to the mortgage. "Without her signature a mortgage executed by him is invalid. TIence, a reformation of the mortgage as to him, or his heir, or the devisee of the land, without reforming it at the same time as against the wife, would be wholly inoperative for any purpose.
The homestead in controversy belonged to the husband. The wife had no estate in it by virtue of the homestead right. She had only an absolute veto upon the power of her husband to alienate it, which the statute executes for her until she sees fit to- affix her signature to her husband’s conveyance of it. Godfrey v. Thornton, 46 Wis., 677. Our statute only removes [452]*452the disability of coverture in respect to the separate estate of the wife. This homestead not being the separate estate of the wife, it is clear that she was under the common-law disabilities of coverture when she signed the defective mortgage. Being so, she could only validate her husband’s mortgage of the homestead by signing it. She has signed no such mortgage, and could not make a valid executory agreement to do so. Hence, there is no ground upon which a judgment to reform the.mortgage can legally be rendered.
The death of Peter Petesch, and the fact that the homestead descended or was devised to his widow, are not important; neither is her subsequent marriage with the defendant Jacob Uambach, or the conveyance of the homestead to him. The case stands precisely as it would have stood had the action been brought in the life-time of Peter, against the mortgagors, and must be determined on the same principles.
We have studied attentively the very able argument of the learned counsel for the plaintiffs, and the authorities which he cites. We agree with him that on principles of natural equity the plaintiff ought to have relief, and should be better satisfied could we award it to him; but we are denied that satisfaction by inexorable rules of law, which we may not disregard. We must affirm the judgment of the circuit court.
Obtost, J.,’ concurred.
Cole and Taylob, JJ., dissented.
Ryae, O. J., was not present.