COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0460-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
CARL STEINBACH,
Plaintiff-Respondent,
v.
RICHARD FISCHER and
MARYETTE FISCHER,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Vergeront,
Roggensack and Deininger, JJ.
PER
CURIAM. Richard and Maryette Fischer appeal from a judgment
reforming the deeds to their property and that of their neighbor, Carl Steinbach. The Fischers own a rectangular piece of
property 500 feet by 200 feet, facing south on a road and otherwise surrounded
by Steinbach's property to the east, west and north. The deed reformation moves their north-south property lines
approximately seventy feet to the east, thereby giving Steinbach additional
property to the west and taking a similar size parcel away from him to the
east. The trial court reformed the deed
upon finding that a 1957 conveyance of what is now Steinbach's property
contained a mutually mistaken land description. The issue is whether the court heard sufficient evidence to make
that finding, and whether the statute of limitations on certain real estate
actions contained in § 893.33(2), Stats.,
barred Steinbach's action. Because the
latter issue is raised for the first time on appeal, we deem it waived. Wirth v. Ehly, 93 Wis.2d 433,
443-44, 287 N.W.2d 140, 145-46 (1980).
Because the evidence supports the trial court's finding on mutual
mistake, we affirm.[1]
Henry and Marie Siewert
originally owned both Steinbach's and the Fischers' property and held it as one
parcel. In 1957, they conveyed the
Steinbach property to George and Caroline Peters, Steinbach's aunt and
uncle. Steinbach then purchased the
property from the Peterses shortly afterwards.
The Siewerts retained the Fischer property, and lived on it until they
sold it to the Fischers in 1969. The
disputed seventy-foot strip at the western edge of the Fischer property
contains a north-south driveway with a tree line on its eastern side. Until 1993, it also contained a barn to the
west of the driveway.
Steinbach testified that
financial considerations prevented him from buying the property in 1957. Instead, the Peterses bought the property in
order to hold it for him until he could afford to buy it. As a consequence, he was involved in the
negotiations and subsequent transaction.
He testified that the Peterses and the Siewerts intended the tree line
to be the west property line between their properties. He further testified that he had always used
the barn and the driveway as his own since 1957. The Siewerts' deed to the Peterses contained a provision allowing
them to use the well located on the Siewerts' property "when cattle are
being housed in the barn or pastured on said land conveyed." The Fischers' deed provides that their
ownership remains subject to that well agreement. Steinbach was the only witness testifying as to the intent of the
1957 transaction, as all parties to it were either dead or unavailable. He was unable to explain why the land
description in the 1957 deed moved the property line seventy feet west of the
intended line, thus placing the barn and driveway on the Fischer parcel.
The trial court found a
mutual mistake justifying reformation of the deeds based on Steinbach's
recollection of the intended original property line, his conduct in using the
disputed land since 1957, and the well agreement. We review whether that evidence is sufficient to support that
finding under the clearly erroneous standard.
Section 805.17(2), Stats. The court may reform a deed if there is
positive and satisfactory evidence showing a mutual mistake of fact in the
agreement as written. St. Norbert
College Found., Inc. v. McCormick, 81 Wis.2d 423, 432, 260 N.W.2d 776,
781 (1978).
The trial court did not
clearly err in its finding. The court
could reasonably infer from the well agreement that the Siewerts intended to
convey the barn to the Peterses.
Steinbach confirmed in his testimony that the Siewerts intended to
convey not only the barn but the land east of the barn, up to the tree line, as
well. The trial court expressly found
that testimony credible, and its determination on credibility is not subject to
review. Rubi v. Paige,
139 Wis.2d 300, 308, 407 N.W.2d 323, 326 (Ct. App. 1987). Additionally, it is undisputed that
Steinbach had always used the driveway and the barn until its destruction. Conduct that occurs after the transaction is
relevant to proving mutual mistake. Stadele
v. Resnick. 274 Wis. 346, 352, 80 N.W.2d 272, 276 (1957). Taken together, this evidence and the
reasonable inferences available from it provide sufficient evidence for the
trial court's decision, even if reasonable opposing inferences were
available.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.