Applicability of general transfers at death provisions.
Priority of certain mortgages, trust funds.
Uniform vendor and purchaser risk act.
Transitional and curative provisions.
Liens against public officials or employes.
Scope, definitions, construction. 706.01(1)
Subject to the exclusions in sub. (2)
, this chapter shall govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity.
Excluded from the operation of this chapter are transactions which an interest in land is affected:
By lease for a term limited to one year or less; or by contract or option to lease for such period which postpones the commencement of the agreed lease to a time not later than 60 days after the date of the contract or option; or by assignment, modification or termination of lease when, at the time such assignment, modification or termination is made, the unexpired term is limited to one year or less, and remains so limited under the lease as modified; except that instruments relating to such excluded transactions, if in recordable form, shall be entitled to record.
This chapter shall be liberally construed, in cases of conflict or ambiguity, so as to effectuate the intentions of parties who have acted in good faith.
A "conveyance" is a written instrument, evidencing a transaction governed by this chapter, which satisfies the requirements of s. 706.02
"Conveyance of mineral interests" means any transaction under sub. (1)
entered into for the purpose of determining the presence, location, quality or quantity of metalliferous minerals or for the purpose of mining, developing or extracting metalliferous minerals, or both. Any transaction under sub. (1)
entered into by a mining company is rebuttably presumed to be a conveyance of mineral interests.
"Grantor" means the person from whom an interest in lands passes by conveyance and includes, without limitation, lessors, vendors, mortgagors, optionors, releasors, assignors and trust settlors of interest in lands. "Grantee" means the person to whom such interest passes. Whenever consistent with the context, reference to the interest of a party includes the interest of the party's heirs, successors, personal representatives and assigns.
"Homestead", as used in this chapter, means the dwelling, and so much of the land surrounding it as is reasonably necessary for use of the dwelling as a home, but not less than one-fourth acre (if available) and not exceeding 40 acres.
"Interest in minerals" means any fee simple interest in minerals beneath the surface of land which is:
Separate from the fee simple interest in the surface of the land; and
Created by an instrument transferring, granting, assigning or reserving the minerals.
"Metalliferous minerals" means naturally occurring minerals containing metal.
"Mineral" means a naturally occurring substance recognized by standard authorities as mineral, whether metalliferous or nonmetalliferous.
"Mining company" means any person or agent of a person who has a prospecting or mining permit under s. 293.45
"Signed" includes any handwritten signature or symbol on a conveyance intended by the person affixing or adopting the same to constitute an execution of the conveyance.
The doctrine of part performance is not an "operation of law" under sub. (2) (a) which excludes the application of ch. 706 to a transaction. Wyss v. Albee, 183 W (2d) 245, 515 NW (2d) 517 (Ct. App. 1994).
Formal requisites. 706.02(1)(1)
Transactions under s. 706.01 (1)
shall not be valid unless evidenced by a conveyance which:
Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and
Is signed by or on behalf of each of the grantors; and
Is signed by or on behalf of all parties, if a lease or contract to convey; and
Is signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01 (7)
except conveyances between spouses, but on a purchase money mortgage pledging that property as security only the purchaser need sign the mortgage; and
Is delivered. Except under s. 706.09
, a conveyance delivered upon a parol limitation or condition shall be subject thereto only if the issue arises in an action or proceeding commenced within 5 years following the date of such conditional delivery; however, when death or survival of a grantor is made such a limiting or conditioning circumstance, the conveyance shall be subject thereto only if the issue arises in an action or proceeding commenced within such 5-year period and commenced prior to such death.
A conveyance may satisfy any of the foregoing requirements of this section:
By specific reference, in a writing signed as required, to extrinsic writings in existence when the conveyance is executed; or
By physical annexation of several writings to one another, with the mutual consent of the parties; or
By several writings which show expressly on their faces that they refer to the same transaction, and which the parties have mutually acknowledged by conduct or agreement as evidences of the transaction.
History: 1971 c. 211
; 1977 c. 177
Under 235.01 (2), Stats. 1967, there can be no waiver of the necessity of a wife's joining in a deed of a homestead and no finding of agency of the husband will sustain the deed. Wangen v. Leum, 46 W (2d) 60, 174 NW (2d) 266.
A deed which does not express the consideration held incomplete where there was no evidence of an agreement as to what the consideration was. Johnson v. Mielke, 49 W (2d) 60, 181 NW (2d) 503.
In pleading a contract which is subject to the statute of frauds it is not necessary to allege facts to establish that the contract complies with the statute or is within its exceptions. Ritterbusch v. Ritterbusch, 50 W (2d) 633, 184 NW (2d) 865.
An option to purchase land must be in writing and cannot be modified orally, but a seller may orally agree to accept payment in full rather than in instalments. Kubnick v. Bohne, 56 W (2d) 527, 202 NW (2d) 400.
The 4 elements of the test of undue influence to set aside a will are also applicable in order to void an inter vivos transfer. Ward v. Ward, 62 W (2d) 543, 215 NW (2d) 3.
Standing alone, an added provision in a 30-day option agreement to purchase real estate did not comply with the statute of frauds. Edlebeck v. Barnes, 63 W (2d) 240, 216 NW (2d) 551.
An oral contract for the conveyance of an interest in land is void unless there is a memorandum that conforms to the statute of frauds. Trimble v. Wis. Builders, Inc. 72 W (2d) 435, 241 NW (2d) 409.
Where contract for sale of land with indefinite description is taken out of statute of frauds by part performance, extrinsic evidence admissible but for statute of frauds may be introduced to provide description. Clay v. Bradley, 74 W (2d) 153, 246 NW (2d) 142.
Question under (1) (b) whether property boundaries are identified to a reasonable certainty is for the jury to determine with the aid of all competent extrinsic evidence. Zapuchlak v. Hucal, 82 W (2d) 184, 262 NW (2d) 514.
Homestead defense under 706.02 (1) (f) is not defeated by 706.04, but tort claim may exist against signing spouse who misrepresents non-signing spouse's acquiescence. Glinski v. Sheldon, 88 W (2d) 509, 276 NW (2d) 815 (1979).
Defense of statute of frauds is waived if not raised in trial court. Hine v. Vilter, 88 W (2d) 645, 277 NW (2d) 772 (1979).
Mortgage fraudulently executed by use of forged signature of one grantor was wholly void. State Bank of Drummond v. Christophersen, 93 W (2d) 148, 286 NW (2d) 547 (1980).
Where contract for sale of land and personalty is not divisible, contract is entirely void if this section is not satisfied. Spensley Feed v. Livingston Feed, 128 W (2d) 279, 381 NW (2d) 601 (Ct. App. 1985).
The homestead signature requirement of sub. (1) (f) must be waived affirmatively by actual signing of the mortgage; failure to plead as an affirmative defense did not constitute waiver. Weber v. Weber, 176 W (2d) 1085, 501 NW (2d) 413 (1993).
A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 W (2d) 426, 555 (NW) 2d 655 (Ct. App. 1996).
The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger, 82 F (3d) 140 (1996).
Agents, officers and guardians. 706.03(1)(a)
"Private corporation" means a corporation other than a public corporation.
"Public corporation" means this state, a county, town, city or village in this state, a subunit of the state, county, town, city or village, a special purpose district in this state or any state or municipal authority or similar organization financed in whole or in part by public funds.
A conveyance signed by one purporting to act as agent for another shall be ineffective as against the purported principal unless such agent was expressly authorized, and unless the authorizing principal is identified as such in
the conveyance or in the form of signature or acknowledgment. The burden of proving the authority of any such agent shall be upon the person asserting the same.
Unless a different authorization is recorded under sub. (3)
or is contained in the corporation's articles of incorporation, any one officer of a private corporation is authorized to sign conveyances in the corporate name. The absence of a corporate seal shall not invalidate any corporate conveyance. Public corporations shall authorize and execute conveyances as provided by law.
Any private corporation may, by resolution of its governing board, duly adopted, certified and recorded in the office of the register of deeds of the county in which a conveyance executed by such corporation is to be recorded, authorize by name or title one or more persons, whether or not officers of such corporation, to execute conveyances, either generally or with specified limitation, in the name and on behalf of such corporation. After adoption and recording of such resolution and until recording of a resolution amending or revoking the same, conveyances may be executed on behalf of such corporation only in accordance with the terms thereof.
A nonprofit association, as defined in s. 184.01 (2)
, may authorize a person to execute conveyances of estates or interests in real property by executing and filing a statement of authority under s. 184.05
A conveyance by a minor or incompetent is effective only if executed by an authorized guardian on behalf of such minor or incompetent. In the case of a limited incompetency, such restriction does not apply if an individual has been determined competent to make contracts under s. 880.33 (3)
Where a partner's actions in a transaction on behalf of a partnership fall within the express provisions of s. 178.06 (1), a partner who acts on behalf of the partnership is "an agent of the partnership" and s. 178.06 (1) controls. Where the partner's actions do not fall within those provisions the partner "purports to act as an agent" and s. 706.03 controls. Wyss v. Albee, 193 W (2d) 101, 532 NW (2d) 444 (1995).
A transaction which does not satisfy one or more of the requirements of s. 706.02
may be enforceable in whole or in part under doctrines of equity, provided all of the elements of the transaction are clearly and satisfactorily proved and, in addition:
The deficiency of the conveyance may be supplied by reformation in equity; or
The party against whom enforcement is sought would be unjustly enriched if enforcement of the transaction were denied; or
The party against whom enforcement is sought is equitably estopped from asserting the deficiency. A party may be so estopped whenever, pursuant to the transaction and in good faith reliance thereon, the party claiming estoppel has changed his or her position to the party's substantial detriment under circumstances such that the detriment so incurred may not be effectively recovered otherwise than by enforcement of the transaction, and either:
The grantee has been admitted into substantial possession or use of the premises or has been permitted to retain such possession or use after termination of a prior right thereto; or
The detriment so incurred was incurred with the prior knowing consent or approval of the party sought to be estopped.
History: 1993 a. 486
See note to 178.04, citing In re Estate of Schaefer, 72 W (2d) 600, 241 NW (2d) 607.
In equity action seeking conveyance of farm in accord with oral agreement, where tenants gave up plans to build home on other property, planted crops on farm, and painted interior of farmhouse, trial court properly ordered conveyance under (3). Krauza v. Mauritz, 78 W (2d) 276, 254 NW (2d) 251.
Personal services to vendor in reliance upon oral agreement are not enough, standing alone, to constitute part performance. In Matter of Estate of Lade, 82 W (2d) 80, 260 NW (2d) 665.
Under (3) (a), grantee with knowledge of equitable estoppel against grantor takes title subject to the estoppel. Brevig v. Webster, 88 W (2d) 165, 277 NW (2d) 321 (Ct. App. 1979).
See note to 706.02, citing Glinski v. Sheldon, 88 W (2d) 509, 276 NW (2d) 815 (1979).
Failure to execute document can be cured under this section. "Unclean hands" defense discussed. Security Pac. Nat. Bank v. Ginkowski, 140 W (2d) 332, 410 NW (2d) 589 (Ct. App. 1987).
Section 706.04 does not refer to deficiencies under 706.03. Triple Interest, Inc. v. Motel 6, Inc. 414 F Supp. 589.
Formal requisites for record. 706.05(1)
Subject to s. 59.43 (2m)
, every conveyance, and every other instrument which affects title to land in this state, shall be entitled to record in the office of the register of deeds of each county in which land affected thereby may lie.
Except as different or additional requirements may be provided by law, every instrument offered for record shall:
Bear such signatures as are required by law;
Identify, to the extent that the nature of the instrument permits, and in form and terms which permit ready entry upon the various books and indices publicly maintained as land records of such county, the land to which such instrument relates and the parties or other persons whose interests in such land are affected. Except as provided in sub. (2m)
, identification may be either by the terms of the instrument or by reference to an instrument of record in the same office, naming the place where such record may be found.