The plaintiff, Campbell, having taken by assignment all interest in this matter that Mrs. Humiston had, asserts in this action a right to recover against defendant Rogers upon his deed of October, 1919, to Mrs. Humis-ton and Fox, the necessary incident expenses and the amount recovered by Mrs. Olsen upon the breach of warranty in the deed of October, 1922, to her. His complaint was framed upon such theory, although facts were therein recited and testified to upon the trial as to Rogers being requested to actas attorney for Mrs. Humiston and plaintiff in the former action; that he declined so to do; that he recommended and retained the attorneys who appeared and defended for them; that he contributed to the payment for such services; advised the appeal there taken to this court and therein appeared as counsel.

Plaintiff now also contends that in case he cannot maintain a right to recover on breach of warranty he may nevertheless succeed in recovering the same amount of damages because of an alleged breach of duty or obligation that Rogers owed to plaintiff and Mrs. Humiston to properly advise them when consulted, at the time for pleading in the former action. We think, however, such position cannot now be taken; — the action was treated all the way through as an action on warranty, not for tort; plaintiff joined Fox as codefendant with Rogers and asked for rélief against Fox solely upon his warranty in the conveyance of an undivided half; if it was intended by the plaintiff to assert a tort liability on the part of Rogers, then plaintiff could not properly join Fox because no facts ar^ recited or claim made showing any tort liability on the part of Fox; Fox and Rogers asserted by their pleadings claims for purely equitable relief; the action was tried by the court and the findings were of form appropriate to one where equitable procedure alone is *574followed; Rogers’ counterclaim for reformation was disposed of as in an action of equity;— it is now too late for plaintiff to change front and assert such a substantially different claim and one at law.

Whatever may have been the position of Rogers under his warranty in the deed of October, 1919, to Mrs. Humiston and Fox, still plaintiff (succeeding to Fox) and Mrs. Humis-ton were bound, at their peril, to know their own title and the proper and adequate description of the property they were conveying to Mrs. Olsen in October, 1922. When challenged by her on' their warranty of ownership of seventy-one feet frontage instead of the forty-nine feet actually owned, they asserted, by verified pleading and testimony, that they never owned and never intended to convey to Mrs. Olsen more than the forty-nine feet, and that Mrs. Olsen had full knowledge of such facts; that the mistake by inserting the seventy-one feet in their deed to Mrs. Olsen was mutual and that Mrs. Olsen ought not to profit thereby, but in so asserting they necessarily recognized as beyond dispute that a similar mistake existed and a .similar lack of warranty arose as to these twenty-two feet in the deed by Rogers in 1919. From the time of so pleading in defense to Mrs. Olsen’s cross-complaint there was therefore no longer any dispute of fact between Rogers, Campbell, and Mrs. Humiston as to there having been a mutual mistake as to the description in the Rogers deed of 1919. If plaintiff and Mrs. Humiston knew that-they did not own or intend to convey the twentyTtwo feet to Mrs. Olsen, they likewise knew that Rogers did not own or intend to convey it to them. If, because of mutual mistake, the twenty-two feet should disappear from the Olsen deed in 1922, it should, for the same reason, evaporate from the Rogers deed of 1919.

The issue of fact, however, between Mrs. Olsen and her grantors on this point, viz. whether such mistake was mutual, was decided on the trial of that issue in favor of *575Mrs. Olsen, and she recovered because of the determination there that she was not informed of the real situation, and then, there being no mutual mistake of fact, there could be no defense to the letter of the warranty she asserted.

As between plaintiff, Mrs. Humiston, and Rogers, however, it cannot now be disputed by any one of them that there was a mutual mistake sufficient to authorize a correction of the deed of 1919 and a denial of any liability upon the warranty of that deed as to the twenty-two feet, because, if there was no intention to convey, there could be none to warrant.

There is here no applicability of the rule of law asserted by respondent that one may be bound by his warranty as to known existing incumbrances or defects of title as declared in Klippel v. Borngesser, 177 Wis. 423, 426, 188 N. W. 654; Bennett v. Keehn, 67 Wis. 154, 161, 29 N. W. 207, 30 N. W. 112; New York City v. New York & S. B. F. & S. T. Co. 231 N. Y. 18, 26, 131 N. E. 554; and the many cases cited in note on p. 225, L. R. A. 1916 E (excepting such obvious easements as telephone lines, Chandler v. Gault, 181 Wis. 5, 12, 194 N. W. 33; or highways, Kutz v. McCune, 22 Wis. 628). Here, however, we have the exact opposite of that shown where such rule was-applied, in that all the parties to the deed by Rogers in 1919 are now in solemn accord that there was no intention to warrant as to the twenty-two feet because of no intention to convej. The judgment, therefore, in the former case, disposing only of the issue of fact between Mrs. Olsen and her grantors, did not dispose of the issue here between her grantors and their grantor, Rogers, and is not binding on him.

There can therefore be no recovery by plaintiff against defendant Rogers on the claim here asserted upon the alleged breach of warranty.

There is no occasion or necessity for a reformation of the deed of 1919 as prayed for by defendant Rogers in his cross-complaint. The status of the title to the twenty-two feet is *576finally and completely settled by the judgment m the former action (Olsen v. Humiston, 186 Wis. 70, 202 N. W. 160), and Rogers is not entitled to subject .plaintiff to any costs in connection with such counterclaim.

By the Court. — Judgment reversed, with directions to dismiss the.complaint: Respondent to pay the clerk’s fees, no other costs to be allowed either party.