Opinion
May 9, 1951 September 14, 1951 —
November 6, 1951.
APPEAL from a judgment of the circuit court for Milwaukee county: OTTO H. BREMENBACH, Circuit Judge. Affirmed.
For the appellant there were briefs by William J. McCauley, district attorney, Oliver L. O'Boyle, corporation counsel, and Robert P. Russell, assistant corporation counsel, attorneys, and Carl B. Rix of Milwaukee of counsel, and oral argument by Mr. O'Boyle and Mr. Rix.
For the respondent there were briefs by Lines, Spooner Quarles and Quarles, Spence Quarles, attorneys, and Louis Quarles, Maxwell H. Herriott, and Edward H. Borgelt of counsel, all of Milwaukee, and oral argument by Mr. Herriott.
This case was argued and submitted with the case of Milwaukee County v. Milwaukee Yacht Club, ante, p. 554, 49 N.W.2d 899, and the facts are stated therein. This was an action to reform the deed given by the city to the county in 1938 by eliminating the provision with reference to the Milwaukee Yacht Club. Judgment was entered on November 14, 1950, dismissing the action on its merits, and the plaintiff appeals from said judgment.
The deed from the city to the county dated September 19, 1938, recited in part:
"This deed is given to correct the legal description designated as parcel No. 1 and contained in warranty deed dated November 12, 1936, . . . being a conveyance of the premises now known as McKinley Park."
In its memorandum decision the trial court stated:
"As to the county's second cause of action for reformation, I find the fact to be that the deed of November 12, 1936 (Exhibit 7), effectually conveyed to Milwaukee county McKinley Park as there named. The premises consisted of three parcels and were known as McKinley Park. The description of parcel No. 1 is defective but the deed was effective on its face as to parcel No. 2 and parcel No. 3. It was the manifest intention of the deed to convey all of the right, title, and interest of the city of Milwaukee in McKinley Park. . . .
"The deed dated November 12, 1936 (Exhibit 7), is held to be effective. The defect with respect to parcel No. 1 of McKinley Park was explainable by parol evidence. Such defect with respect to parcel No. 1 did not invalidate the deed. Hunter v. Neuville, 255 Wis. 423; Hanley v. Kraftczyk, 119 Wis. 352.
"Inasmuch as the action for reformation was commenced more than ten years after the recording of the deed dated November 12, 1936 (Exhibit 7), it must be held to be barred by sec. 330.18 (4), Wisconsin statutes. Parker v. Kane, 4 Wis. *1."
We agree with the determination of the trial court for the reasons stated.
By the Court. — Judgment affirmed.