706.001 Annotation
A bank's mortgage validly attached a lien to a vendor's interest under a land contract. Wisconsin's land recording statute is broad enough to include creation of a lien on a vendor's interest in a land contract, which includes legal title to land. Liebzeit v. Intercity State Bank, FSB,
819 F.3d 981 (2016).
706.01
706.01
Definitions. In this chapter:
706.01(4)
(4) “Conveyance" means a written instrument, evidencing a transaction governed by this chapter, that satisfies the requirements of s.
706.02, subject to s.
706.25.
706.01(5)
(5) “Conveyance of mineral interests" means any transaction under s.
706.001 (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 s.
706.001 (1) entered into by a mining company is rebuttably presumed to be a conveyance of mineral interests.
706.01(6)
(6) “Grantor" means the person from whom an interest in lands passes by conveyance, including, without limitation, lessors, vendors, mortgagors, optionors, releasors, assignors and trust settlors of interest in lands, and “grantee" means the person to whom the interest in land 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.
706.01(7)
(7) “Homestead" 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.
706.01(7m)
(7m) “Interest in minerals" means any fee simple interest in minerals beneath the surface of land that is:
706.01(7m)(a)
(a) Separate from the fee simple interest in the surface of the land; and
706.01(7m)(b)
(b) Created by an instrument transferring, granting, assigning or reserving the minerals.
706.01(7r)
(7r) “Legal description" means a description of a specific parcel of real estate that is described in one of the following ways, whichever is appropriate:
706.01(7r)(b)
(b) By condominium name and unit number in a platted condominium development.
706.01(8)
(8) “Metalliferous minerals" means naturally occurring minerals containing metal.
706.01(8m)
(8m) “Mineral" means a naturally occurring substance recognized by standard authorities as mineral, whether metalliferous or nonmetalliferous.
706.01(9)
(9) “Mining company" means any person or agent of a person who has a prospecting permit under s.
293.45 or a mining permit under s.
293.49 or
295.58.
706.01(10)
(10) “Signed" includes any handwritten signature or symbol on a conveyance intended by the person affixing or adopting the signature or symbol to constitute an execution of the conveyance.
706.01 Annotation
A necessary implication under s. 706.10 (3) is one that is so clear as to be express; it is a required implication. The words “heirs and assigns," or any similar language, are unnecessary under s. 706.10 (3) to indicate a transferable interest. As a matter of law, “grantee" has the exact same meaning as “grantee and his heirs and assigns" unless another meaning is expressly stated or implied. Therefore, “heirs and assigns" need not be construed as having any legal effect, and the use of the term in a grant of water flowage rights and not in a grant of sand removal rights in the same deed did not create a necessary implication that the sand rights were non-transferable. Borek Cranberry Marsh, Inc. v. Jackson County,
2010 WI 95,
328 Wis. 2d 613,
785 N.W.2d 615,
08-1144.
706.02
706.02
Formal requisites. 706.02(1)(1)
Transactions under s.
706.001 (1) shall not be valid unless evidenced by a conveyance that satisfies all of the following:
706.02(1)(c)
(c) 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
706.02(1)(d)
(d) Is signed by or on behalf of each of the grantors; and
706.02(1)(e)
(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and
706.02(1)(f)
(f) 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
706.02(1)(g)
(g) 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.
706.02(2)
(2) A conveyance may satisfy any of the foregoing requirements of this section:
706.02(2)(a)
(a) By specific reference, in a writing signed as required, to extrinsic writings in existence when the conveyance is executed; or
706.02(2)(b)
(b) By physical annexation of several writings to one another, with the mutual consent of the parties; or
706.02(2)(c)
(c) 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.
706.02 Annotation
There can be no waiver of the necessity of a spouse's joining in a deed of a homestead and no finding of agency will sustain the deed. Wangen v. Leum,
46 Wis. 2d 60,
174 N.W.2d 266 (1970).
706.02 Annotation
In pleading a contract that 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 Wis. 2d 633,
184 N.W.2d 865 (1971).
706.02 Annotation
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 installments. Kubnick v. Bohne,
56 Wis. 2d 527,
202 N.W.2d 400 (1972).
706.02 Annotation
The test of undue influence to set aside a will is also applicable in order to void an inter vivos transfer due to undue influence. Ward v. Ward,
62 Wis. 2d 543,
215 N.W.2d 3 (1974).
706.02 Annotation
A general rule used in construing conveyance instruments as to whether they comply with the statute of frauds is to determine if there is ambiguity or uncertainty as to some of the essential elements of the documents. If so, extrinsic evidence may be resorted to in order to determine what was the real agreement or intention of the parties. However, the document itself must provide some foundation, link, or key to the extrinsic evidence. Edlebeck v. Barnes,
63 Wis. 2d 240,
216 N.W.2d 551 (1974).
706.02 Annotation
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. Wisconsin Builders, Inc.,
72 Wis. 2d 435,
241 N.W.2d 409 (1976).
706.02 Annotation
When a contract for the sale of land with an indefinite description is taken out of the statute of frauds by part performance, extrinsic evidence admissible but for the statute of frauds may be introduced to provide the description. Clay v. Bradley,
74 Wis. 2d 153,
246 N.W.2d 142 (1976).
706.02 Annotation
The question under sub. (1) (b) of 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 Wis. 2d 184,
262 N.W.2d 514 (1978).
706.02 Annotation
The homestead defense under sub. (1) (f) is not defeated by s. 706.04, but a tort claim may exist against a signing spouse who misrepresents the non-signing spouse's acquiescence. Glinski v. Sheldon,
88 Wis. 2d 509,
276 N.W.2d 815 (1979).
706.02 Annotation
The defense of the statute of frauds is waived if not raised in the trial court. Hine v. Vilter,
88 Wis. 2d 645,
277 N.W.2d 772 (1979).
706.02 Annotation
A mortgage fraudulently executed by the use of a forged signature of one grantor was wholly void. State Bank of Drummond v. Christophersen,
93 Wis. 2d 148,
286 N.W.2d 547 (1980).
706.02 Annotation
When a contract for the sale of land and personalty is not divisible, the contract is entirely void if this section is not satisfied. Spensley Feeds, Inc. v. Livingston Feed & Lumber, Inc.,
128 Wis. 2d 279,
381 N.W.2d 601 (Ct. App. 1985).
706.02 Annotation
The homestead signature requirement of sub. (1) (f) must be waived affirmatively by actual signing of the mortgage. A failure to plead the statute of frauds as an affirmative defense did not constitute a waiver. Weber v. Weber,
176 Wis. 2d 1085,
501 N.W.2d 413 (1993).
706.02 Annotation
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 Wis. 2d 426,
555 N.W.2d 655 (Ct. App. 1996),
95-1850.
706.02 Annotation
An in-court oral stipulation could create a mortgage interest in property, but a homestead conveyance must bear the conveyors' signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under s. 815.20. Equitable Bank, S.S.B. v. Chabron,
2000 WI App 210,
238 Wis. 2d 708,
618 N.W.2d 262,
99-2639.
706.02 Annotation
A conveyance that “identifies the land" as required by sub. (1) means the conveyance must identify the property with “reasonable certainty." “Reasonable certainty" means that by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. It does not, however, necessarily require a legal description. Anderson v. Quinn,
2007 WI App 260,
306 Wis. 2d 686,
743 N.W.2d 492,
06-2462.
706.02 Annotation
Parol evidence in the context of the statute of frauds does not operate to supply fatal omissions of a writing but rather to render the writing intelligible. A clear distinction must be drawn between the proper admission of extrinsic evidence for the purpose of applying the description to identified property versus the improper supplying of a description or adding to a description that on its face is insufficient. As the description “remaining acreage" was, on its face, insufficient to identify the specific property, parol evidence would not be admissible under the statute of frauds. 303, LLC v. Born,
2012 WI App 115,
344 Wis. 2d 364,
823 N.W.2d 269,
11-2368.
706.02 Annotation
The mortgage in this case was equitably assigned to the holder of the original note by operation of law upon transfer of the note. Therefore, equitable assignment of the mortgage was not barred by the statute of frauds under this section. Dow Family, LLC v. PHH Mortgage Corp.,
2014 WI 56,
354 Wis. 2d 796,
848 N.W.2d 728,
13-0221.
706.02 Annotation
Mere ambiguity does not render a contract unenforceable vis-à-vis the statute of frauds. Rather, when a conveyance includes a description of property that can be applied in multiple ways, the statute of frauds requires that parol evidence of intent be connected in some way to the language of the agreement. Prezioso v. Aerts,
2014 WI App 126,
358 Wis. 2d 714,
858 N.W.2d 386,
13-2762.
706.02 Annotation
When the only signer of two mortgages was “a married person,” at the time he executed the mortgages, and he had an interest in the homestead that was alienated by those conveyances, under the plain language of sub. (1) (f) the mortgage transactions were invalid from the start because they were not “signed, or joined in by separate conveyance, by or on behalf of each spouse.” As such, whether the non-signing spouse had waived her interest in the homestead property by deeding the property to the signing spouse did not need to be determined. U.S. Bank National Association v. Stehno,
2017 WI App 57,
378 Wis. 2d 179,
902 N.W.2d 270,
16-0193.
706.02 Annotation
The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger,
82 F.3d 140 (1996).
706.03
706.03
Agents, officers and guardians. 706.03(1)(a)
(a) “Private corporation" means a corporation other than a public corporation.
706.03(1)(b)
(b) “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.
706.03(1m)
(1m) 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.
706.03(2)
(2) 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.
706.03(3)
(3) 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.
706.03(3m)
(3m) 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.
706.03(4)
(4) A conveyance by a minor or an individual adjudicated incompetent in this state is effective only if executed by an authorized guardian on behalf of the minor or individual adjudicated incompetent. This restriction does not apply if the individual's adjudication of incompetency permits him or her to contract.
706.03 Annotation
When a partner's actions in a transaction on behalf of a partnership fall within the express provisions of s. 178.06 (1) [now s. 178.0301 (1)], the partner is “an agent of the partnership" and s. 178.06 (1) [now s. 178.0301 (1)] controls. When the partner's actions do not fall within those provisions, the partner “purports to act as an agent" and this section controls. Wyss v. Albee,
193 Wis. 2d 101,
532 N.W.2d 444 (1995).
706.03 Annotation
If the grantor's attorney-in-fact does not have authority to exercise the power of attorney in his or her own favor, any deed that the attorney-in-fact signs to himself or herself and others is void in its entirety under sub. (1m). Lucareli v. Lucareli,
2000 WI App 133,
237 Wis. 2d 487,
614 N.W.2d 60,
99-1679.
706.04
706.04
Equitable relief. 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:
706.04(1)
(1) The deficiency of the conveyance may be supplied by reformation in equity; or
706.04(2)
(2) The party against whom enforcement is sought would be unjustly enriched if enforcement of the transaction were denied; or
706.04(3)
(3) 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:
706.04(3)(a)
(a) 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
706.04(3)(b)
(b) The detriment so incurred was incurred with the prior knowing consent or approval of the party sought to be estopped.
706.04 History
History: 1993 a. 486.
706.04 Annotation
A partnership created to deal in real estate is void unless conforming to the statute of frauds unless all parties have performed the contract, thus indicating their acquiescence in its terms. Schaefer v. Schaefer,
72 Wis. 2d 600,
241 N.W.2d 607 (1976).
706.04 Annotation
In an equity action seeking the conveyance of a farm under an oral agreement, the trial court properly ordered the conveyance under sub. (3) when the tenants gave up plans to build a home on other property, planted crops on the farm, and painted the interior of the farmhouse. Krauza v. Mauritz,
78 Wis. 2d 276,
254 N.W.2d 251 (1977).
706.04 Annotation
Personal services to a vendor in reliance upon an oral agreement are not enough, standing alone, to constitute part performance. Jorgensen v. Ketter,
82 Wis. 2d 80,
260 N.W.2d 665 (1978).
706.04 Annotation
Under sub. (3) (a), a grantee with knowledge of the facts giving rise to equitable estoppel against the grantor takes title subject to the estoppel. Brevig v. Webster,
88 Wis. 2d 165,
277 N.W.2d 321 (Ct. App. 1979).
706.04 Annotation
The homestead defense under s. 706.02 (1) (f) is not defeated by this section, but a tort claim may exist against a signing spouse who misrepresents the non-signing spouse's acquiescence. Glinski v. Sheldon,
88 Wis. 2d 509,
276 N.W.2d 815 (1979).
706.04 Annotation
Failure to execute a document can be cured under this section. Discussing the “unclean hands" defense. Security Pacific National Bank v. Ginkowski,
140 Wis. 2d 332,
410 N.W.2d 589 (Ct. App. 1987).
706.04 Annotation
Once a deed has been properly executed and recorded, a court, in equity, may not alter the document when a party later expresses a different intent than was memorialized. Wynhoff v. Vogt,
2000 WI App 57,
233 Wis. 2d 673,
608 N.W.2d 400,
99-0103.
706.04 Annotation
This section does not refer to deficiencies under s. 706.03. Triple Interest, Inc. v. Motel 6, Inc.,
414 F. Supp. 589 (1976).
706.05
706.05
Formal requisites for record. 706.05(1)(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.
706.05(2)
(2) Except as different or additional requirements may be provided by law, every instrument offered for record shall:
706.05(2)(a)
(a) Bear such signatures as are required by law;
706.05(2)(c)
(c) Identify, to the extent that the nature of the instrument permits, and in form and terms that permit ready entry upon the various books and indexes 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 document number of the record and, if the record is assigned a volume and page number, the volume and page where the record is recorded.
