The Green Bay & Mississippi Canal Co. vs. Hewitt, Jr., and others. 2. At the time of the date of this deed and bond, Morgan L. Martin was under contract with the state to build the whole line of improvement on Fox river from Green Bay to Lake Winnebago, and thereunder did build the canal through the said lands of George W. Lawe, but did no other work at that point than he was required to do by his contract with the state, and for which he was paid by the state. 3. On the 10th day of September, 1852, George W. Lawe and his wife conveyed the other undivided one-half of said land to M. J. Mead. On the 30th of September, 1852, M. J. Mead quitclaimed back to said George W. Lawe the sawmill and fixtures and the ground on which the same were situated, with the water power and mill privileges necessary to the proper use of the said premises as a saw-mill, with the appurtenances thereto belonging, being a part of the premises deeded to him by Lawe and wife by the deed of September 10, 1852. 4. On August 14, 1855, M. J. Mead conveyed by warranty deed to the Fox and Wisconsin Improvement Company, the other undivided one-half of the land, one undivided one-half of which was conveyed to Morgan L. Martin by George W. Lawe and wife by the deed of December 12, 1851, together with all the hydraulic privileges secured to George W. Lawe by a bond executed by M. L. Martin, which bond was by this deed declared canceled, and this deed being therein declared subject to one theretofore executed to said Martin by said Lawe of a portion of the premises. And on the 28th day of August, 1855, George W. Lawe and wife, by a quitclaim deed, conveyed to the Fox and Wisconsin Improvement Company the land described in the deed from M. J. Mead to the company by the deed of August 14, 1855, also subject to a deed theretofore given by them to Morgan L. Martin. 5. In April, 1866, Morgan L. Martin had a judgment in the circuit court of Brown county against the Fox & Wisconsin Improvement Company, and issued an execution 3 The Green Bay & Mississippi Canal Co. vs. Hewitt, Jr., and others. thereon to the sheriff of Outagamie county, who levied upon and sold to Morgan L. Martin a number of tracts of land as the property of said company, and among others a piece of land commencing at a point at the upper or western extremity of the canal at Kaukauna, and twenty feet north of the northerly water line of the canal, running thence down and along the bank of said canal and twenty feet distant from the water line as aforesaid to the northerly line of the south half of private claim No. 1, lately owned by George W. Lawe; thence following said northerly line of the south half of lot No. 1 aforesaid, easterly to Fox river at low water mark, thence up stream along the margin of Fox river to the upper extremity of the guard lock at the head of the canal; thence northerly to the place of beginning, including all the land sold to Martin by Lawe by the deed of December 12, 1851, and by Lawe to Mead by the deed of September 10, 1852, and by Mead and Lawe to the Fox and Wisconsin Improvement Company, and also the right of way of the canal at that point. And on the 23d day of December, 1871, A. B. Evarts, then sheriff of Outagamie county, executed a conveyance of said premises with the other premises sold at sheriff's sale as aforesaid, to said Morgan L. Martin. 6. Under the circumstances attending the conveyance to Morgan L. Martin by George W. Lawe and wife of the date of December 12, 1851, the state of Wisconsin was in equity entitled to have a conveyance from said Martin of the lands described in that deed, and, previous to the time of the levy of said execution above referred to, that right of the state of Wisconsin had passed to the Fox & Wisconsin Improvement Company by virtue of acts of the legislature and proceedings had thereunder, and was then held and owned by said company. 7. Previous to February 22, 1873, negotiations were entered into by the plaintiff and Morgan L. Martin for the The Green Bay & Mississippi Canal Co. vs. Hewitt, Jr., and others. purchase by the plaintiff of the interest acquired by said Martin in lands formerly owned by the Fox and Wisconsin Improvement Company by the sheriff's sale and deed above referred to. In the negotiations nothing was said about, and no reference was made to, the purchase by the plaintiff of any interest in the lands in dispute acquired by said Martin by the deed from George W. Lawe of December 12, 1851, or of any other interest in said lands, or in any lands conveyed to said Martin by said sheriff's deed, except for the purchase of the interest acquired by said Martin by said sheriff's sale and deed. These negotiations resulted in the execution by said Morgan L. Martin and his wife, of his deed to the plaintiff, bearing date February 22, 1873, by which he conveyed to the plaintiff the whole of that part of the south half of private claim No. 1 lying on the easterly side of the canal at Kaukauna aforesaid, including the whole of the lands in controversy in this action, by metes and bounds. 8. At the time of the execution of this deed to the plaintiff of February 22, 1873, it was the opinion of Morgan L. Martin that he only acquired an undivided one-half of said land by the sheriff's deed, and that his said deed to the plaintiff only conveyed to the plaintiff an undivided onehalf of said land, to wit, the undivided one-half thereof conveyed by George W. Lawe and wife to Mead (and wife) and Lawe and wife to the Fox and Wisconsin Improvement Company. And it was not his intention to convey to the plaintiff the one undivided one-half of said land conveyed to him by George W. Lawe and wife by the deed of December 12, 1851, but on the contrary, it was his intention not to convey that interest to the plaintiff but to retain the same to himself. 9. That the mistake of Morgan L. Martin was a mistake of law, to wit, a mistake as to the true construction of his deed, and not a mistake of fact. 10. But if the mistake was one of fact, instead of law, The Green Bay & Mississippi Canal Co. vs. Hewitt, Jr., and others. inasmuch as the conveyance of Morgan L. Martin placed the legal title to the property and the whole of it where it belonged in equity, the deed by which this was effected should not be reformed by a court of equity. 11. By the sheriff's sale and deed, Morgan L. Martin did acquire an interest in the whole property, to wit, the legal title to the undivided half thereof that was conveyed to Mead by Lawe and wife, and by Mead and Lawe and their wives to the Fox and Wisconsin Improvement Company, and the equity of the state to which that company had succeeded to have a conveyance from said Martin of that undivided one-half thereof that was conveyed to Martin by Lawe and wife by the deed of December 12, 1851. As conclusions of law the court found that the defendants were not entitled to a reformation of the deed nor to any other relief under the counterclaim, and that such counterclaim should be dismissed. Upon the issue made by the denials contained in the answer, the court found that the plaintiff was the owner of the premises in question and entitled to the possession thereof; that the defendants unlawfully withheld the possession; and that the plaintiff had been damaged thereby to the amount of six cents. Judgment was accordingly entered in favor of the plaintiff, and the defendants appealed. David S. Ordway, attorney, and Wm. P. Lynde, of counsel, for the appellants, to the point that the mistake in the deed might be corrected, cited James v. Cutler, 54 Wis. 178, and cases cited by the court; Pitcher v. Hennessey, 48 N. Y. 416, 423-4; Fuchs v. Treat, 41 Wis. 404; Maher v. Hibernia Ins. Co. 67 N. Y. 283; Taylor v. Holmes, 14 Fed. Rep. 498; Snell v. Ins. Co. 98 U. S. 90; Stafford v. Fetters, 55 Iowa, 484; Tabor v. Mich. Mut. L. Ins. Co. 44 Mich. 330; Sampson v. Mudge, 13 Fed. Rep. 260. Moses Hooper, for the respondent, contended, inter alia: 1. The defendants are estopped from setting up the counter VOL. 62-21 The Green Bay & Mississippi Canal Co. vs. Hewitt, Jr., and others. claim for reformation of the deed. Allegans contraria non est audiendus. When a party has an election between inconsistent remedies, he is confined to that which he first chooses. Webster v. Phoenix Ins. Co. 36 Wis. 67; Ramsdale v. Foote, 55 id. 557; Sanger v. Wood, 3 Johns. Ch. 422; Bowen v. Mandeville, 95 N. Y. 239, 240; Rodermund v. Clark, 46 id. 354; Lilley v. Adams, 108 Mass. 50; Littlefield v. Brown, 1 Wend. 405; Rapalee v. Stewart, 27 N. Y. 310; Hermaņ on Estoppel, 462, 465. When the defendants were called upon to answer the plaintiff's claim of title, two courses were open. They could stand upon the deed of February 22, 1873, and their interpretation thereof, or could assert that such deed was invalid because not according to the contract of the parties, and ask specific performance of the contract according to their view thereof. They deliberately chose the former course, asserting the deed as the true contract of the parties; and they cannot now change their ground and repudiate the deed. Sibert v. McAvoy, 15 Ill. 109; Rufner v. McConnell, 14 id. 168; Steinbach v. Relief F. Ins. Co. 77 N. Y. 502; Washburn v. Great Western Ins. Co. 114 Mass. 175; McNaughten v. Partridge, 11 Ohio, 235; Martin v. Ives, 17 Serg. & R. 364; Baily v. Baily, 44 Pa. St. 274; Ullery v. Clark, 18 id. 148; 2 Wash. (Va.), 258, 270, 275; Le Guen v. Gouverneur, 1 Johns. Cas. 436, 502; Penn v. Reynolds, 23 Grat. (Va.), 518. 2. If there was any mistake in the deed, it was a mistake of law, and not a mistake of fact. The authorities are abundant that a mistake of law cannot be corrected. Durant v. Bacot, 13 N. J. Eq. 201; Burt v. Wilson, 28 Cal. 632; Barnes v. Bartlett, 47 Ind. 98; Toops v. Snyder, 70 id. 554; Easter v. Severin, 78 id. 540; Williamson v. Iitner, 79 id. 233; Neff v. Rains, 33 Wis. 689; Snell v. Ins. Co. 98 U. S. 85; Kenyon v. Welty, 20 Cal. 637; 2 Pomeroy's Eq. Jur. sec. 842; 1 Story's Eq. Jur. sec. 111. But that rule enforced without exception would seem to produce hardship in some cases. A middle ground is |