By the Oourt,
Dixott, O. J.The court should have postponed the hearing, and given the defendant time to produce his witnesses, when first applied to by him for that purpose. The affidavit showed a clear case of mistake or excusable neglect on the part of the defendant, which would have entitled him to relief under sec. 38, ch. 125, R. S., had judgment been actually rendered against him. See Johnson v. Eldred, 13 Wis., 482. It was, therefore, error or an abuse of discretion for the court to refuse the application. The objection of the plaintiff, founded on the statement of his counsel that he had two other witnesses then in court whom he should desire to examine if the defendant should offer any evidence, and whom he could not have at any future day, seems not well taken. In the absence of any statement of facts showing how or why it was that those witnesses could not be produced in future, it must be presumed that they could be as well then as' at the time of the application. If they resided without the jurisdiction of the court, or were about to depart from the state, or if for any other cause it would become impracticable or impossible to procure their attendance or depositions at any future time, the facts should have been shown. As it is, we can only infer that their attendance in future would merely have caused inconvenience and expense — objections which could have readily been *508obviated by the imposition of proper terms as a condition of delay.
For the same reason above given, the affidavit being the same, we are of opinion that the cause should have been opened on the 19 th of December, and that the evidence offered by the defendant on that day should have been received. As admitted by the counsel for the plaintiff, the issue, in respect of the proofs offered, was the same under the original as under the amended answer. The proofs were admissible under either, and, according to the cases of Eaton v. Eaton, 15 Wis., 259, and Smith v. Wood, 12 Wis., 382, if made as offered, would have established a good defense to the action.
We have been referred to the case of Grant v. Townsend, 2 Hill, 554, as in conflict with the doctrine of these cases ; but we do not think that it is. It may well be that the acknowledgment in a deed of lands, regularly executed, of the payment of the consideration, cannot be contradicted by the grantor or those claiming under him, for the purpose of destroying the effect and operation of the deed, and yet that the consideration of a deed defectively executed, or so as not to pass the title, may be. . It is a familiar rule that a defective 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.
As to the proposed amendment to the answer, we see no reason why it should not have been allowed.
Judgment reversed, and cause remanded for further proceedings according to law.
DowNER, J., dissents.