The following opinion was filed April 4, 1961:
Currie, J.(on motion for rehearing). The brief submitted in behalf of the plaintiffs in support of their motion for rehearing attacks the factual basis upon which we determined that the result of the appeal was controlled by the principle enunciated in Thiel v. Damrau (1954), 268 Wis. 76, 66 N. W. (2d) 747. At page 436 of our original opinion we stated:
“In 1938, Emily Hurd conveyed lot 25 to Mrs. Halsey, a sister of Dr. Hurd. In 1939, Mrs. Halsey conveyed such *440blot to Arthur F. Conrad, and in August, 1944, Conrad and wife conveyed it to Dr. Hurd who had purchased the same.
“A Miss Mayme Davis acquired title to lot 1, block 5, in December, 1924, and built a cottage on such lot. In July, 1944, she conveyed such lot 1 to Dr. Hurd. Dr. Hurd, in August, 1949, conveyed such lot 1 and lot 25, block 4, to Conrad and wife, and also included in the deed description the parcel marked ‘Road’ on the plat lying between such two lots. Thus, Dr. Hurd had title as common owner of lot 25, block 4, and lot 1, block 5, together with lots 22, 23, and 24, block 4, for a five-year period from 1944 to 1949. There was no change in title of such lots 1 and 25 until Conrad and wife conveyed to the plaintiffs in 1956. Dr. Hurd continued as owner of such lots 22, 23, and 24 until he conveyed to the defendant in 1953.”
Counsel for the plaintiffs now point out that after Andrews made his survey in 1944, quitclaim deeds were exchanged in 1944 by Dr. Hurd with Conrad and wife, and also between Hurd with Mayme Davis, so as to correct the descriptions of their respective properties and bring them in line with the Andrews survey. It is asserted that the deeds mentioned in the afore-quoted extract from our original opinion as having been executed to Dr. Hurd by Mayme Davis in July, 1944, and by Conrad and wife in August, 1944, were two of such four exchange quitclaim deeds.
The 1944 exchange quitclaim deeds so referred to, apparently made with reference to the Andrews survey, are shown in the abstract (plaintiffs’ Exhibit 2) and are as follows:
Entry No. 99 of Abstract: Mayme Davis as grantor to Hurd as grantee, dated July 24, 1944, conveying lot 1, block 5. (This would be lot 24, block 4, according to the Hoar survey.)
Entry No. 98 of Abstract: Hurd and wife as grantors to Mayme Davis, as grantee, dated July 24, 1944, conveying lot 4, block 5. (This would be lot 1, block 5, according to the Hoar survey.)
*440cEntry No. 103 of Abstract: Conrad and wife, as grantors to Hurd, as grantee, dated August 7, 1944, conveying lot 25, block 4. (This would be lot 22, block 4, according to the Hoar survey.)
Entry No. 100 of Abstract: Hurd and wife, as grantors, to Conrad and wife, as grantees, dated July 24, 1944, conveying lot 2, block 5. (This would be lot 25, block 4, according to the Hoar survey.)
Thus Conrad-and wife, and not Dr. Hurd, had title to lot 25, block 4, from August, 1944, until August, 1949, and beyond, and Hurd was not the common owner of lots 24 and 25, block 4, at the time he and his wife executed the deed to the Conrads in August, 1949. (These descriptions are according to the Hoar survey.) Therefore, our original opinion was in error in holding that the principle of Thiel v. Damrau, supra, controlled the disposition of the instant appeal.
Such 1949 deed to the Conrads is shown at Entry No. 116 of the abstract, and purported to convey lot 25, block 4; lot 1, block 5; and the private road lying between them. Such deed is a warranty deed reciting a consideration of one dollar and other valuable consideration. No revenue stamps were affixed thus indicating that such conveyance was not the result of a sale but rather one to clear title. The notary who acknowledged the deed was a layman and not a lawyer. In the meantime, Hoar had made his survey in 1948, and we are inclined to assume that the description employed has reference to that survey rather than the Andrews survey inasmuch as Hurd disapproved of the latter.
If the assumption is made that all descriptions in conveyances material to this controversy, which antedate the 1944 Andrews survey, together with all conveyances made subsequent to the Hoar survey in 1948, coincide with those of the Hoar survey, while those made between the dates of *440d1944 and 1948, including the four 1944 exchange quitclaim deeds, have reference to the Andrews survey, the pieces of the puzzle fall in place and a logical explanation is afforded of the acts of possession of the various parties. No other hypothesis will provide such result.
In our original opinion we did not expressly approve the determination of the trial court that the Andrews survey is the correct survey. We now so do. However, we invoke our discretionary power under sec. 251.09, Stats., in the interest of justice, to reverse the judgment below and remand for further proceedings. The defendant shall be afforded an opportunity to amend her answer so as to counterclaim for reformation of the description in the afore-described 1949 deed from Hurd and wife to Conrad and wife shown at Entry No. 116 of the abstract (plaintiffs’ Exhibit 2). Inasmuch as the grantors Hurd and the grantees Conrad have no further interest in the premises it is not necessary that they be joined as parties. Grossbach v. Brown (1888), 72 Wis. 458, 40 N. W. 494, and 76 C. J. S., Reformation of Instruments, p. 425, sec. 70 a (3).
If the defendant elects to amend and pray for such reformation, the case should be reopened for the taking of further testimony to permit all parties to present evidence on such issue of reformation. We consider that the acts of possession, on the part of Dr. Hurd and the Conrads of the cottages on the various parcels before and after the execution and delivery of such 1949 deed, would be most material on the issue of what premises were intended by the parties to such deed to be identified by the description employed therein.
The plaintiffs have acquired no intervening rights which would bar such reformation. This is because there were buildings on some of the land conveyed to them in 1956 by the Conrads, which buildings were occupied by the defendant, or her tenants, under the trial court’s holding that the de*440escription in such 1956 deed is held to be in accordance with the Andrews survey. Such occupancy was notice to the world that the defendant claimed some rights to such premises. Miller v. Green (1953), 264 Wis. 159, 58 N. W. (2d) 704, 37 A. L. R. (2d) 1104, and Ubbink v. Herbert A. Nieman & Co. (1953), 265 Wis. 442, 62 N. W. (2d) 8.
In conclusion, we desire to point out that counsel for the plaintiffs must share with the court the responsibility for the fact that two of the four exchange deeds of 1944 were not discovered and mentioned in the original opinion. Not only did the original briefs of both parties fail to call attention to such deeds, but in two different places in plaintiffs’ brief (pages 25 and 32), it was conceded that common ownership of lots 24 and 25, block 4, according to the Hoar survey (lots 1 and 2, block 5, according to the Andrews survey), did rest in Dr. Hurd. We quote from page 32 of plaintiffs’ original brief:
“Furthermore, in 1944 Doctor Hurd owned all of these lots as has been previously pointed out to the court. He could have conveyed by metes and bounds from the section line and accurately established the boundaries between his grantees, dividing the buildings according to his wishes. This he neglected to do although the county surveyor [Andrews] had pointed out to him that the buildings were improperly located.”
By the Court. — The prior mandate is vacated. The judgment is reversed, and cause remanded for further proceedings not inconsistent with this opinion. No costs are to be taxed by either party on this appeal. The motion for rehearing is denied without costs.