
    Gotfredson Brothers Company, Appellant, vs. Dusing and another, Respondents.
    
      January 12
    
    April 5, 1911.
    
    
      Mortgages: Homestead: Reformation.
    
    The description in. a mortgage cannot he corrected, in an action to reform the instrument, so as to include the homestead of the mortgagors, who were husband and wife at the time of its execution. Sec. 2257, Stats. (1898), does not relate to an action for reformation, and the amendment of sec. 2203 by ch. 45, Laws of 1905, did not alter the rule.
    Appeal from a judgment of the circuit court for Calumet county: Geo. W. Burrell, Circuit Judge.
    
      Affirmed.
    
    Action for the reformation and foreclosure of a mortgage. August 16, 1906, the defendants Gharles J. Dusing and his wife, Amanda Dusing, for the purpose of securing a preexisting indebtedness due from Charles J. Dusing to the plaintiff, executed a mortgage intended and supposed to cover their homestead. By mistake of all parties, other lands, and not the homestead, were described in the mortgage. The wife, who was not possessed of any separate estate, appeared and objected to a reformation of the mortgage and sale of the homestead. Erom a judgment refusing reformation and dismissing the complaint as to the wife the plaintiff appealed.
    Bor the appellant there was a brief by Minahan ■& Mina-han, and oral argument by V. I. Minahan.
    
    For the respondents there was a brief by Nash ■& Nash, and oral argument by 2?. J. Nash.
    
   The following opinion was filed January 31, 1911:

Vihje, J.

The question presented by this appeal is, Can a description in a mortgage be corrected in an action to reform the instrument so as to include the homestead of the mortgagors, who were husband and wife at the time of the execution thereof ? In the cases of Petesch v. Hambach, 48 Wis. 443, 4 N. W. 565; O'Malley v. Ruddy, 79 Wis. 147, 48 N. W. 116; and Cumps v. Kiyo, 104 Wis. 656, 80 N. W. 937, this court held that it could not. We are urged to overrule these decisions because they were made without reference to sec. 2257, Stats. (1898), which it is claimed gives the court such power. That section provides:

“The circuit court of any county in which a conveyance of real estate shall have been recorded may make an order correcting the description in such conveyance on proof being made to the satisfaction of the court that such conveyance contains an erroneous description, not intended by the parties thereto; or when the description is ambiguous and does not clearly or fully describe the premises intended to be conveyed, if the grantor therein is dead or a nonresident of the state and the person to whom it was made, his heirs, legal representatives or assigns have been in the quiet, undisturbed and peaceable possession of the premises intended to be conveyed for the term of ten years or more; but this section shall not prevent an action for the reformation of any conveyance, and if in any doubt the court shall direct such action to be brought.”

It is clear that the conditions under which the order therein provided for may be made do not apply to this case. Here the grantors are neither dead nor nonresidents of the state, and the grantee has never been in possession of the premises conveyed. Moreover, the statute was in existence when the cases mentioned were decided, and the reason it was not therein referred to was no doubt because it in no way relates to an action for reformation.

The policy of the law and the reasons for refusing reformation are so fully set forth in the cases above referred to that a restatement thereof is not deemed necessary. In the case of O’Malley v. Buddy, supra, the court refused reformation even though the wife by her answer consented thereto, on the ground that the statute had provided for no such mode of alienation of a homestead; that nothing less than her signature on the instrument of conveyance was effectual. No valid reason bas been called to onr attention why we should overrule those cases, and we must decline to do so.

But it is urged that the amendment of see. 2203, Stats. (1898), by ch. 45, Laws of 1905, destroys the reasons for the rule laid down in the cases cited, and therefore destroys the rule, inasmuch as the nature of the homestead estate in the wife is changed. Sec. 2203 reads as follows:

“Conveyances of land or of any estate or interest therein may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved as directed in this chapter, without any other act or ceremony whatever; but no mortgage or other alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife to the same.”

It was enacted in 1858 and remained unchanged until the amendment of 1905. It was therefore in force when the above mentioned cases were decided. By the amendment of 1905 it was changed to read as follows:

“Conveyances- of land or any estate or interest therein may be made by deed signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved as directed in this chapter, without any other act or ceremony whatever; but no mortgage or other alienation by a married man of his homestead, exempt by law from execution, or any interest therein, legal or equitable, present or future, by deed or otherwise, without his wife’s consent, evidenced by her act of joining in the deed, mortgage or other conveyance, shall be valid or of any effect whatever.”

It will be perceived that no attempt was made by the amendment to change the nature of the homestead estate, but only to strengthen the protective efficacy of the statute, which, as stated by this court in Wilburn v. Land, 138 Wis. 36, 119 N. W. 803, had been somewhat emasculated by the construction given it in Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395; Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420; and Jerdee v. Furbush, 115 Wis. 277, 91 N. W. 661. Indeed, tbe amendment was passed as a direct result of tbe decision in Jerdee v. Fwrbush and of tbe suggestion therein contained, in order to more completely protect tbe homestead estate, and to render any alienation thereof by tbe husband, without tbe signature of tbe wife, void. Tbe phrase in tbe amendment, “evidenced by her act of joining in tbe deed, mortgage or other conveyance,” is equivalent to tbe phrase “without tbe signature of tbe wife to tbe same” in tbe law-as it stood before. Only by affixing her signature to tbe conveyance can a wife join therein. If it was tbe policy of tbe law to refuse a reformation under tbe statute as it stood before tbe amendment, it should be all tbe more its policy to refuse it under tbe statute as amended.

It is also urged that no reformation is necessary; that tbe court can give such a construction to tbe erroneous description as to make it cover tbe right one, and foreclose upon tbe actual homestead with tbe description so corrected by construction. This contention was aptly answered by tbe trial judge in bis opinion, where be said:

“It makes no difference, I take it, whether we call it a ‘reformation’ or a ‘correction.’ Both mean tbe same thing as applied to the present question. Tbe stubborn fact remains-that tbe plaintiff cannot have a foreclosure on bis homestead without tbe court putting in a description entirely different from what tbe parties have put into the instrument.”

Tbe statute prohibits an alienation by correction as much-as it does by reformation, for tbe one would comply with it no more than tbe other. In either case there would be no conveyance with tbe signature of tbe wife to tbe same, or with her consent evidenced by her act of joining therein. Tbe latter is now necessary to a valid mortgage upon tbe homestead of a married man.

By the Gourt. — Judgment affirmed.

A motion for a rehearing was denied April 5, 1911.  