706.08(3)
(3) When an express trust is created, but its existence is not disclosed in a recorded conveyance to the trustee, the title of the trustee shall be deemed absolute as against the subsequent creditors of the trustee not having notice of the trust and as against purchasers from such trustee without notice and for a valuable consideration.
706.08(4)
(4) It shall be conclusively presumed that a person is a trustee of a valid express trust and has full power of conveyance if all of the following occur:
706.08(4)(a)
(a) The person is designated as trustee and holds an interest in land as trustee.
706.08(4)(b)
(b) The person's authority and powers as trustee are not set forth in a recorded instrument.
706.08(4)(c)
(c) The person conveys an interest in land as trustee to a good faith purchaser, as defined in
s. 401.201 (33).
706.08(5)
(5) When a conveyance purports to be absolute in terms, but is made or intended to be made defeasible by force of another instrument for that purpose, the original conveyance shall not be thereby defeated or affected as against any person other than the maker of the defeasance or the maker's heirs or devisees or persons having actual notice thereof, unless the instrument of defeasance has been recorded in the office of the register of deeds of the county where the lands lie.
706.08(6)
(6) The recording of an assignment of a mortgage shall not in itself be deemed notice of such assignment to the mortgagor so as to invalidate any payment made to the mortgagee without actual notice of such assignment.
706.08(7)
(7) No letter of attorney or other instrument containing a power to convey lands, when executed and recorded under this chapter, shall be deemed to be revoked by any act of the party by whom it was executed unless the instrument containing such revocation is also recorded in the same office in which the instrument containing the power was recorded, and such record shall import notice to all persons, including the agent named in said letter of attorney of the contents thereof. The death of the party executing such letter of attorney shall not operate as a revocation thereof as to the attorney or agent until the attorney or agent has notice of the death, or as to one who without notice of such death in good faith deals with the attorney or agent.
706.08 Annotation
An unrecorded conveyance, if delivered, is valid against judgment creditors since they are not bona fide creditors for value. West Federal S. & L. v. Interstate Investment, 57 W (2d) 690, 205 NW (2d) 361.
706.08 Annotation
Purchaser having constructive notice that there may have been unrecorded conveyance was not "purchaser in good faith" under (1) (a). Kordecki v. Rizzo, 106 W (2d) 713, 317 NW (2d) 479 (1982).
706.09
706.09
Notice of conveyance from the record. 706.09(1)(1)
When conveyance is free of prior adverse claim. A purchaser for a valuable consideration, without notice as defined in
sub. (2), and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
706.09(1)(a)
(a)
Nondelivery. Nondelivery, or conditional or revocable delivery, of any recorded conveyance, unless the condition or revocability is expressly referred to in such conveyance or other recorded instrument.
706.09(1)(b)
(b)
Conveyance outside chain of title not identified by definite reference. Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain. No reference shall be definite which fails to specify, by direct reference to a particular place in the public land record, or, by positive statement, the nature and scope of the prior outstanding interest created or affected by such conveyance, transaction or event, the identity of the original or subsequent owner or holder of such interest, the real estate affected, and the approximate date of such conveyance, transaction or event.
706.09(1)(c)
(c)
Unrecorded extensions of interests expiring by lapse of time. Continuance, extension or renewal of rights of grantees, purchasers, optionees, or lessees under any land contract, option, lease or other conveyance of an interest limited to expire, absolutely or upon a contingency, within a fixed or determinable time, where 2 years have elapsed after such time, unless there is recorded a notice or other instrument referring to such continuance, extension or renewal and stating or providing a later time for the enforcement, exercise, performance or termination of such interest and then only if less than 2 years have elapsed after such later time. This paragraph shall not apply to life estates, mortgages or trust deeds, nor shall it inferentially extend any interest otherwise expiring by lapse of time.
706.09(1)(d)
(d)
Nonidentity of persons in chain of title. Nonidentity of persons named in, signing or acknowledging one or more related conveyances or instruments affecting real estate, provided the persons appear in such conveyances under identical names or under variants thereof, including inclusion, exclusion or use of: commonly recognized abbreviations, contractions, initials, or foreign, colloquial, or other equivalents; first or middle names or initials; simple transpositions which produce substantially similar pronunciation; articles or prepositions in names or titles; description of entities as corporations, companies, or any abbreviation or contraction of either; name suffixes such as senior or junior; where such identity or variance has appeared of record for 5 years.
706.09(1)(e)
(e)
Marital interests. Homestead of the spouse of any transferor of an interest in real estate, if the recorded conveyance purporting to transfer the homestead states that the person executing it is single, unmarried or widowed or fails to indicate the marital status of the transferor, and if the conveyance has, in either case, appeared of record for 5 years. This paragraph does not apply to the interest of a married person who is described of record as a holder in joint tenancy or of marital property with that transferor.
706.09(1)(f)
(f)
Lack of authority of officers, agents or fiduciaries. Any defect or insufficiency in authorization of any purported officer, partner, manager, agent or fiduciary to act in the name or on behalf of any corporation, partnership, limited liability company, principal, trust, estate, minor, incompetent or other holder of an interest in real estate purported to be conveyed in a representative capacity, after the conveyance has appeared of record for 5 years.
706.09(1)(g)
(g)
Defects in judicial proceedings. Any defect or irregularity, jurisdictional or otherwise, in an action or proceeding out of which any judgment or order affecting real estate issued after the judgment or order has appeared of record for 5 years.
706.09(1)(h)
(h)
Nonexistence, incapacity or incompetency. Nonexistence, acts in excess of legal powers or legal incapacity or incompetency of any purported person or legal entity, whether natural or artificial, foreign or domestic, provided the recorded conveyance or instrument affecting the real estate shall purport to have been duly executed by such purported person or legal entity, and shall have appeared of record for 5 years.
706.09(1)(i)
(i)
Facts not asserted of record. Any fact not appearing of record, but the opposite or contradiction of which appears affirmatively and expressly in a conveyance, affidavit or other instrument of record in the chain of title of the real estate affected for 5 years. Such facts may, without limitation by noninclusion, relate to age, sex, birth, death, capacity, relationship, family history, descent, heirship, names, identity of persons, marriage, marital status, homestead, possession or adverse possession, residence, service in the armed forces, conflicts and ambiguities in descriptions of land in recorded instruments, identification of any recorded plats or subdivisions, corporate authorization to convey, and the happening of any condition or event which terminates an estate or interest.
706.09(1)(j)
(j)
Defects in tax deed. Nonexistence or illegality of any proceedings from and including the assessment of the real estate for taxation up to and including the execution of the tax deed after the tax deed has been of record for 5 years.
706.09(1)(k)
(k)
Interests not of record within 30 years. Any interest of which no affirmative and express notice appears of record within 30 years.
706.09(2)
(2) Notice of prior claim. A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
706.09(2)(a)
(a)
Affirmative notice. Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious; or
706.09(2)(b)
(b)
Notice of record within 30 years. There appears of record in the chain of title of the real estate affected, within 30 years and prior to the time at which the interest of such purchaser arises in law or equity, an instrument affording affirmative and express notice of such prior outstanding interest conforming to the requirements of definiteness of
sub. (1) (b); or
706.09(2)(c)
(c)
Same. The applicable provisions of
sub. (1) (c) to
(k) requiring that an instrument remain for a time of record, have not been fully satisfied.
706.09(3)
(3) When prior interest not barred. This section shall not be applied to bar or infringe any prior outstanding interest in real estate:
706.09(3)(a)
(a)
Public service corporations, railroads, electric cooperatives, trustees, governmental units. While owned, occupied or used by any public service corporation, any railroad corporation as defined in
s. 195.02, any electric cooperative organized and operating on a nonprofit basis under
ch. 185, or any trustee or receiver of any such corporation or electric cooperative, or any mortgagee or trust deed trustee or receiver thereof; nor any such interest while held by the United States, the state or any political subdivision or municipal corporation thereof; or
706.09(3)(b)
(b)
Unplatted, unimproved, unused, etc. Which, at the time such subsequent purchaser's interest arises, is unplatted, vacant and unoccupied, unused, unimproved and uncultivated; except that this paragraph shall not apply to prior interests dependent for validity or priority upon the circumstances described in
sub. (1) (a),
(b),
(j) and
(k).
706.09(4)
(4) Chain of title: definition. The term "chain of title" as used in this section includes instruments, actions and proceedings discoverable by reasonable search of the public records and indices affecting real estate in the offices of the register of deeds and in probate and of clerks of courts of the counties in which the real estate is located; a tract index shall be deemed an index where the same is publicly maintained.
706.09(5)
(5) Construction. Nothing in this section shall be construed to raise or support any inference adverse or hostile to marketability of titles.
706.09(6)
(6) Effective date. This section shall take effect and may be invoked by qualified purchasers without notice as defined in
sub. (2) whose interests arise on or after July 1, 1968, and by their successors in interest thereafter.
706.09 Annotation
This section does not create or govern interests in land but deals with circumstances when a purchaser of land will be held to have notice of adverse interests. Interests arising through adverse possession or use are governed by ch. 893. Rock Lake Estates Unit Owners Ass'n v. Lake Mills, 195 W (2d) 348, 536 NW (2d) 415 (Ct. App. 1995).
706.09 Annotation
Marketable title and stale records: Clearing exceptions and closing deals. Halligan, WBB May, 1986.
706.095
706.095
Interspousal remedies. Nothing in this chapter limits a spouse's remedy against the other spouse under
ch. 766 for misuse of marital property.
706.095 History
History: 1983 a. 186.
706.10
706.10
Forms, construction. 706.10(1)(1) The several terms and forms of conveyance authorized by law or in common use in this state on July 1, 1971, shall have the same operation and effect under this chapter as formerly, except as this chapter may expressly provide to the contrary; but this section shall not preclude the adoption or use of other, different or more concise forms which conform to the requirements of this chapter.
706.10(2)
(2) No conveyance shall be void for the reason that at the time of delivery thereof such lands are in actual possession of a person claiming under title adverse to the grantor.
706.10(3)
(3) In conveyances of lands words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance.
706.10(4)
(4) A quitclaim deed shall pass all of the interest in or appurtenant to the land described which the grantor could lawfully convey, but shall not warrant or imply the existence, quantity or quality of any such interest.
706.10(5)
(5) A conveyance by which the grantor contracts to warrant the land or its title shall be construed according to its terms, under rules of law for construction of contracts. A conveyance by which the grantor warrants the land or its title shall be construed, except as the terms of the conveyance may otherwise provide, to include covenants, for the benefit of the grantee, the grantee's heirs, successors and assigns, that the grantor at the time of conveyance is lawfully seized of the land; has good right to convey the same land or its title; that the same land or its title is free from all encumbrance; and that the grantor, the grantor's heirs and personal representatives will forever guarantee and defend the title and quiet possession of the land against all lawful claims whatever originating prior to the conveyance, except as the claims may arise out of open and notorious rights of easement, or out of public building, zoning or use restrictions.
706.10(6)
(6) Except as provided in
sub. (7) and except as otherwise provided by law, no warranty or covenant shall be implied in any conveyance, whether or not such conveyance contains special warranties or covenants. No mortgage shall be construed as implying a covenant for the payment of the sum thereby intended to be secured, and when there shall be no express covenant for such payment contained in the mortgage and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee, shall be confined to the lands mentioned in the mortgage.
706.10(7)
(7) In the absence of an express or necessarily implied provision to the contrary, a conveyance evidencing a transaction under which the grantor undertakes to improve the premises so as to equip them for grantee's specified use and occupancy, or to procure such improvement under grantor's direction or control, shall imply a covenant that such improvement shall be performed in a workmanlike manner, and shall be reasonably adequate to equip the premises for such use and occupancy.
706.10 Annotation
Subdivider-vendor must disclose material facts which are not readily discernible to noncommercial purchaser. Ollerman v. O'Rourke Co., Inc. 94 W (2d) 17, 288 NW (2d) 95 (1980).
706.10 Annotation
Builder-vendor liability for construction defects in houses. Kirschnik, 55 MLR 369.
706.10 Annotation
Duty to disclose limited to commercial vendors. 64 MLR 547 (1981).
706.11
706.11
Priority of certain mortgages, trust funds. 706.11(1)(1) Except as provided in
sub. (4), when any of the following mortgages has been duly recorded, it shall have priority over all liens upon the mortgaged premises and the buildings and improvements thereon, except tax and special assessment liens filed after the recording of such mortgage and except liens under
ss. 292.31 (8) (i),
292.41 (6) (d) and
292.81:
706.11(1)(a)
(a) Any mortgage executed to a federal savings and loan association or federal savings bank.
706.11(1)(b)
(b) Any mortgage executed to the department of veterans affairs under s.
45.352, 1971 stats.
706.11(1)(c)
(c) Any mortgage assigned to or executed to any of the following:
706.11(1)(c)1.
1. The United States, this state or a county, city, village or town in this state, or an agency, department or other formally constituted subunit of any of the foregoing.
706.11(1)(c)2.
2. The Wisconsin health and educational facilities authority created under
ch. 231, the Wisconsin housing and economic development authority created under
ch. 234 or any other authority created by state law.
706.11(1)(d)
(d) Any mortgage executed to a state or national bank or to a state or federally chartered credit union.
706.11(1)(g)
(g) Any mortgage executed to an insurer licensed to do business in this state.
706.11(1)(i)
(i) Any mortgage executed to a savings bank organized under
ch. 214.
706.11(2)
(2) State savings and loan associations shall have the priorities specified under
s. 215.21 (4).
706.11(3)
(3) The proceeds of any such mortgage referred to in this section shall, when paid out by a state savings bank, federal savings bank, state savings and loan association or federal savings and loan association, or of any other mortgage from any other source and received by the owner of the premises or by any contractor or subcontractor performing the work and labor, forthwith constitute a trust fund only in the hands of such owner, contractor or subcontractor for the payment proportionally of all claims due and to become due or owing from such contractor or subcontractor for lienable labor and materials until all such claims have been paid, and shall not be a trust fund in the hands of any other person. This section shall not create a civil cause of action against any person other than such owner, contractor or subcontractor. The use of any of such moneys by any owner, contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute, have been paid in full, or proportionally in cases of a deficiency, shall constitute theft by such owner, contractor or subcontractor of any moneys so misappropriated. The district attorney of the county where the premises are situated shall on the complaint of any aggrieved party prosecute such owner, contractor or subcontractor misappropriating such moneys for such theft.
706.11 Annotation
The word "contractor" in sub. (3) includes an owner who acts as his own general contractor, and he can be held liable for conversion. Paulsen Lumber, Inc. v. Meyer, 47 W (2d) 621, 177 NW (2d) 884.
706.11 Annotation
Phrase "filed after the recording of such mortgage" in (1) modifies "all liens." Marine Bank Appleton v. Hietpas, Inc. 149 W (2d) 587, 439 NW (2d) 604 (Ct. App. 1989).
706.11 Annotation
Term "lien" in this section does not include lease. Grosskopf Oil, Inc. v. Winter, 156 W (2d) 575, 457 NW (2d) 514 (Ct. App. 1990).
706.12
706.12
Uniform vendor and purchaser risk act. 706.12(1)(1) Any contract made in this state for the purchase and sale of realty shall be interpreted as including an agreement that the parties shall have the following rights and duties, unless the contract expressly provides otherwise:
706.12(1)(a)
(a) If, when neither the legal title nor the possession of the subject matter of the contract has been transferred, all or a material part thereof is destroyed without fault of the purchaser or is taken by eminent domain, the vendor cannot enforce the contract, and the purchaser is entitled to recover any portion of the price that the purchaser has paid.
706.12(1)(b)
(b) If, when either the legal title or the possession of the subject matter of the contract has been transferred, all or any part thereof is destroyed without fault of the vendor or is taken by eminent domain, the purchaser is not thereby relieved from a duty to pay the price, nor is the purchaser entitled to recover any portion thereof that the purchaser has paid.
706.12(2)
(2) This section shall be so construed as to make uniform the law of those states which enact it.
706.12(3)
(3) This section may be cited as the uniform vendor and purchaser risk act.
706.12 History
History: 1975 c. 422;
1993 a. 486.
706.13
706.13
Slander of title. 706.13(1)(1) In addition to any criminal penalty or civil remedy provided by law, any person who submits for filing, entering in the judgment and lien docket or recording, any lien, claim of lien, lis pendens, writ of attachment or any other instrument relating to the title in real or personal property, knowing the contents or any part of the contents to be false, sham or frivolous, is liable in tort to any person interested in the property whose title is thereby impaired, for punitive damages of $1,000 plus any actual damages caused by the filing, entering or recording.
706.13(2)
(2) This section applies to any person who causes another person to act in the manner specified in
sub. (1).
706.13(3)
(3) This section does not apply to a register of deeds or other government employe who acts in the course of his or her official duties and files, enters or records any instrument relating to title on behalf of another person.
706.13 History
History: 1979 c. 221;
1995 a. 224.
706.13 Annotation
Enactment of this section did not create a cause of action nor destroy the common-law right of recovery. Schlytter v. Lesperance, 62 W (2d) 661, 215 NW (2d) 552.
706.13 Annotation
When lawsuit is commenced under this section, conditional rather than absolute privilege applies to filing of lis pendens. Kensington Development v. Israel, 142 W (2d) 894, 419 NW (2d) 241 (1988).
706.13 Annotation
Lis pendens filing not privileged where there is no relationship between filing and underlying action. Larson v. Zilz, 151 W (2d) 637, 445 NW (2d) 699 (Ct. App. 1989).
706.13 Annotation
For recovery for slander of title, it is not necessary in all cases to prove the loss of an actual sale. The trial court must consider whether it is reasonable under the circumstances to require proof that the slander prevented a particular sale, and if not, the court must determine the degree of particularity required. Tym v. Ludwig, 196 W (2d) 375, 538 NW (2d) 600 (Ct. App. 1995).
706.14
706.14
Transitional and curative provisions. The operation or effect of a conveyance made or recorded in accordance with the provisions of any prior law of this state, or thereafter validated, perfected or cured under any such prior law, shall not be impaired by any provision of this chapter.
706.15
706.15
Liens against public officials or employes. No lien may be filed, entered or recorded against the real or personal property of any official or employe of the state or any political subdivision of the state, relating to an alleged breach of duty by the official or employe, except after notice and a hearing before a court of record and a finding by the court that probable cause exists that there was a breach of duty.
