Scheuer v. Chloupek, 130 Wis. 72.

posed constituted lots 3 and 4. Chloupek denies that he was ever on the ground or pointed out any stakes to the plaintiff,

and claims that he showed him the plat and talked with him about the lots simply from examination of the plat, and the

Scheuer v. Chloupek, 130 Wis. 72.

plaintiff finally concluded to take lots 3 and 4. The premises which the plaintiff claims that Chloupek thus pointed out to him constitute the parcel inclosed with dotted lines on the map. The evidence shows that plaintiff immediately took possession of the parcel inclosed in dotted lines and commenced to build a house thereon, which was finished about Christmas time, when the plaintiff moved in and received from Chloupek a deed of lots 3 and 4, which both parties. then and for six years afterwards supposed to be the parcel included in dotted lines. The plaintiff built a fence around this parcel during the following spring and erected a barn, dug a well, and planted an orchard. When the oral bargain was made Chloupek had a barn on the thirty-eight acre tract immediately north of the plat and was also building a house. He then resided in a rented house a short distance away, but moved into the new house in November, 1895. In October, 1901, Chloupek sold and conveyed to one Hrudka lots 5 and 6 and the north half of lots 7 and 8 in the plat and put Hrudka in possession of a piece of ground ninety feet in width immediately south of the plaintiff's inclosure. At this time the mistake in the plaintiff's boundary lines was first discovered and negotiations were had for some settlement of the matter, which proved fruitless, and this action was commenced. The plaintiff claims that the description in his deed should be corrected so as to describe the land included within the dotted lines, on the ground that he actually bought that land and that, by mutual mistake, it was wrongly described in the deed as lots 3 and 4. Chloupek, however, claims that he sold lots 3 and 4, and that the only mistake was the mistake made by plaintiff himself in taking possession of the wrong land. There was no claim made in the answer that the premises in question constituted any part of Chloupek's homestead. The court found that a mutual mistake was made substantially as claimed by the plaintiff, and entered judgment reforming the deed so that it should describe the land

Scheuer v. Chloupek, 130 Wis. 72.

actually occupied by the plaintiff, and the defendants Chloupek and wife appealed.

It further appears by a stipulation filed in this court that Adolph Chloupek died after the appeal to this court and that, prior to his death, he duly conveyed to the defendant Anna all his title and interest in the land affected by this action; also that Anna Chloupek has been appointed administratrix of his estate and has duly qualified. It was further stipulated that the appeal should be prosecuted by Anna Chloupek in her individual capacity and as administratrix aforesaid.

For the appellant there was a brief by Sedgwick, Sedgwick & Schmidt, and oral argument by G. G. Sedgwick.

For the respondent there was a brief by Nash & Nash, and oral argument by L. J. Nash.

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 included 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. 443, 4 N. W. 565; Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395. The serious difficulty arises, however, upon the

Scheuer v. Chloupek, 130 Wis. 72.

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

Scheuer v. Chloupek, 130 Wis. 72.

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 undoubtedly 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 appears 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