#### Gimbel Brothers, Incorporated, and others, Respondents, vs. Tolman and wife, Appellants.

*October 5*

October *26, 1915.*

*Reformation of lease: Mistake: Evidence: Laches.*

1. A finding of the trial court that by mutual mistake of the parties there was a misdescription of the premises intended to be covered by a lease is *held*to be sustained by the evidence.

2. *Delay in*commencing *an*action for correction of the misdescription of premises in a lease did not constitute laches where plaintiff was in peaceable possession of the disputed premises, with defendants’ consent, and the rights of innocent parties were in no way prejudiced.

Appeal from a judgment of the circuit court for Milwaukee county: E. 0. Esci-iweilee, Circuit Judge.

*Affirmed.*

*383This is an action to reform a lease covering a portion of a ■city block in the city of Milwaukee, on the ground of an alleged mutual mistake in the description of the premises.

At the time the lease "was executed defendant *Tolman*was the owner of the property in question. The deed by which he acquired title thereto describes the property by lots, in block 69, according to the recorded plat of the city of Milwaukee. In July, 1902, *Tolman*and wife made this contract with the individual plaintiffs, leasing a part of the property *Tolman*owned in this block, describing it by metes and bounds. According to this description the lease encroached seven tenths of a foot on the Third street frontage and five tenths of a foot bn the Grand avenue frontage of the property adjoining the leased premises and known as the Matthews building, and according to the claim of the plaintiffs omitted therefrom a strip seven tenths of a foot wide fronting on Third street and lying along the southerly side of the northeast quarter of the block and extending from Third street to the north and south center line of this block. Under the lease the plaintiffs have occupied all of the property in the northeast, quarter of block 69, except the part occupied by the Matthews building, from the date of the lease to the present time.

The trial court found that it was the intention of the parties to have the lease cover all of the northeast quarter of block 69 except the part known as the Matthews building, and awarded judgment for the reformation of the description of the premises leased to conform to the understanding and intention of the parties. Erom such judgment this appeal is taken.

Eor the appellants there were briefs by *Oharles F. Faw-sett*and *Fordyce H.*Bottum, and oral argument by *Mr. Faw-sett.*

Eor the respondents there was a brief by *GUcTcsman, Gold & Corrigan,*attorneys, and *George B.*Luhman> of counsel, and oral argument by *Nathan GUcTcsman.*

*384Siebecker, J.

By tbe lease in question tbe defendant *Tolman*and wife leased tbe premises owned by *Tolman*in tbe northeast quarter of block 69 pursuant to tbe recorded plat and tbe description thereof in tbe conveyances by which *Tolman*acquired title. Tbe court found that tbe parties to tbe lease believed and understood that tbe occupation and use of tbe northeast quarter of this block, with respect to street and lot lines, conformed to tbe measurements as shown by tbe recorded plat, and that tbe distance from tbe boundary line between Grand avenue and tbe ground occupied by tbe Matthews building to tbe dividing line between tbe southerly wall of tbe Davidson Theater Annex building and tbe ten-foot passageway adjacent thereto was 205 feet, and that tbe distance from tbe boundary line between Third street and tbe lands abutting thereon as occupied by buildings in tbe northeast quarter of this block to tbe center line of tbe north and south alley as platted and subsequently vacated was 160 feet; and that tbe parties understood said dimensions embraced and correctly described tbe northeast quarter of block 69; that tbe parties to this lease intended and understood that tbe description set forth-in this lease was to-cover and include all of tbe premises owned by tbe lessor, Tolman, in tbe northeast quarter of this block, excepting the-part known as tbe Matthews building. Tbe evidence abundantly sustains these findings of fact. It is without dispute that tbe description in tbe lease does not correctly describe-tbe premises tbe lessor *Tolman*owned in tbe northeast quarter of block 69, which tbe parties intended to cover and include in tbe lease. That Mr. Smith, tbe original lessee’s-representative, believed and understood that tbe lease in question was to cover and include all of tbe property *Tolman-*owned in tbe northeast quarter of this block, is clearly infer-able from tbe facts and circumstances shown by tbe evidence. It is manifest from tbe transaction between Smith and *Tolr man*that they both contemplated and intended that tbe-*385courses and distances embraced in tbe description in tbe lease included all tbe property *Tolman*owned in tbis quarter of tbe block A potent and convincing undisputed fact, wbicb supports tbe court’s conclusions upon tbe evidence, is tbe entry and occupancy by tbe plaintiffs under tbe lease of tbe premises embraced in tbe corrected description. Tbis entry and occupancy of tbe premises was witb defendants’ consent and bas continued to tbe present time. It seems clear that tbe parties made a mutual mistake in describing tbe premises intended to be included in tbe lease.

Tbe postponement by tbe plaintiffs to institute an action for the correction of tbe misdescription did not operate to tbe prejudice of innocent parties, and is barren of tbe element of laches so far as tbe defendants are concerned. *Schuster v. Milwaukee E. R. & L. Co.*142 Wis. 578, 126 N. W. 26; *Ludington v. Palton,*111 Wis. 208, 86 N. W. 571.

Nor can laches be imputed to plaintiffs under tbe circumstances showing that they have been in peaceable possession of tbe disputed premises witb tbe defendants’ consent. *Schroder v.*Smith, 249 Ill. 574, 94 N. E. 969; *Wykle v. Bartholomew,*258 Ill. 358, 101 N. E. 597; *Carr v. Burris,*148 Ky. 232, 146 S. W. 424.

Tbe court properly awarded judgment for reformation of tbe description contained in tbe lease.

*By the Court.*— Tbe judgment appealed from is affirmed.