The following opinion was filed January 13, 1920:
Rosenberry, J.The record in this case is ragged and unsatisfactory. The outstanding features of this transaction are plain; the principles applicable are elementary. The pleadings should have presented the real issue. It is as plain as a pike-staff that the deed given by the plaintiff and Overbaugh to the defendants is binding and conclusive upon-both parties thereto, and that oral evidence cannot be given to contradict it, in the absence of any allegation of fraud or mistake. It is equally clear that Overbaugh was a necessary party, as the covenants contained in the deed were joint, and not joint and several.
The plaintiff in his reply set up no grounds for reformation of the deed, entered a general denial, under which the sole issue was non est factum. Upon the deed being offered and received in evidence, its execution being admitted, the defendants were entitled to recover upon their counterclaim, under the pleadings as they stood.
The real question in the case, as to whether the description inserted in the deed was inserted by mutual mistake of the parties, was neither presented by the pleadings nor tried by the court. In Semple v. Whorton, 68 Wis. 626, 32 N. W. 690, it was intimated that if a party sought to be relieved from a covenant such as the one contained in the deed in this case, the only remedy would be in equity for reformation. In Casgrain v. Milwaukee Co. 81 Wis. 113, 51 N. W. 88, it was said:
“The reformation of contracts is purely cognizable in equity. It must be done by equitable action or by equitable counterclaim. It cannot be by mere defense in an action at law. In the present case there has been no action brought *90nor counterclaim interposed to reform this contract; consequently it must stand ás written.” . .
So here, the plaintiff could not contradict the deed by parol evidence, or show that the deed was intended to convey premises other than those described, in the absence of an allegation of fraud or mistake, and if; as the plaintiff claimed upon the trial, the plaintiff and Overbaugh intended to sell and the defendants intended to buy the premises lying east of the Palmer line, and the description inserted in the deed was supposed by both parties to describe such premises, but by. reason of mistake it did not, then the deed should be reformed, and the pleading should be so framed as to present that issue.
We have no hesitancy in reversing this judgment under the provisions of sec. 240577^, Stats., and remanding the cause for a new trial, for the reason that the real controversy has not been fully tried. Proper amendments to the pleadings should be made to bring in Overbaugh as a party, and to present the question of whether or not there was a mutual mistake of the parties in the execution and delivery of the deed to the premises in question.
By the Court. — Judgment reversed, and case remanded for new trial.