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
The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger, 82 F.3d 140
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 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.
When a partner's actions in a transaction on behalf of a partnership fall within the express provisions of s. 178.06 (1), the partner is “an agent of the partnership" and s. 178.06 (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
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
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
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. In re Estate of Schaefer, 72 Wis. 2d 600
, 241 N.W.2d 607
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
Personal services to a vendor in reliance upon an oral agreement are not enough, standing alone, to constitute part performance. In the Matter of the Estate of Lade, 82 Wis. 2d 80
, 260 N.W.2d 665
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).
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
Failure to execute a document can be cured under this section. The “unclean hands" defense is discussed. Security Pacific National Bank v. Ginkowski, 140 Wis. 2d 332
, 410 N.W.2d 589
(Ct. App. 1987).
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
Section 706.04 does not refer to deficiencies under s. 706.03. Triple Interest, Inc. v. Motel 6, Inc. 414 F. Supp. 589
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.
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 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.
Except as provided in par. (b)
, any document submitted for recording or filing that is to be indexed in the real estate records, any document submitted for recording or filing that modifies an original mortgage or land contract, and any document submitted for recording or filing that is a subordination agreement shall contain the full legal description of the property to which the document relates if the document is intended to relate to a particular parcel of land. The legal description may be included on the document or may be attached to the document. The document shall also contain the document number of any original mortgage or land contract that the document affects and, if given on the original mortgage or land contract, the volume and page where the original mortgage or land contract is recorded or filed.
The requirement of a full legal description under par. (a)
does not apply to:
Descriptions of easements for the construction, operation, or maintenance of electric, gas, railroad, water, sewer, telecommunications, or telephone lines or facilities.
Descriptions of property that is subject to liens granted on property thereafter acquired by a rural electric cooperative organized under ch. 185
, by a telephone cooperative organized under ch. 185
, by a pipeline company under s. 76.02 (5)
, by a public utility under s. 196.01 (5)
, by a railroad under s. 195.02 (1)
, or by a water carrier under s. 195.02 (5)
In addition to the requirements under sub. (2)
, every conveyance of mineral interests offered for record shall:
Fully disclose the terms and conditions of the agreement including both the financial arrangements and the exploration rights. Financial arrangements include the consideration exchanged for the interest in land, terms for payment, optional payments, royalty agreements and similar arrangements. Exploration rights include the conditions and extent of any surface and subsurface rights to the land, options to purchase further interest in the land, options to conduct mining operations and similar arrangements.
Fully disclose the parties including any principal, parent corporation, partner or business associate with an interest in the conveyance. This paragraph shall be interpreted to provide maximum disclosure of any person with an economic interest in the transaction.
Any person who anticipates becoming a party to a number of conveyances of a given form may cause a prototype of such form to be recorded, accompanied by a certificate declaring the intention of the recording party to incorporate the terms of such prototype in future recorded conveyances by reference.
Copies of instruments affecting title to land in this state, authenticated by certificate of any public officer, either of this or any other state or foreign country, in whose office the original is filed or recorded pursuant to law, may be recorded in every case in which the original would be entitled to record under this section.
Except as may otherwise be expressly provided, no instrument shall be denied acceptance for record because of the absence of venue, seals, witnesses or other matter of form.
Every instrument which the register of deeds shall accept for record shall be deemed duly recorded despite its failure to conform to one or more of the requirements of this section, provided the instrument is properly indexed in a public index maintained in the office of such register of deeds and recorded at length at the place there shown.
A duly recorded certificate signed by or on behalf of the holder of record of any mortgage or other security interest in lands, and authenticated as provided by s. 706.06
or ch. 140
identifying the mortgage or other interest and stating that the same has been paid or satisfied in whole or in part, shall be sufficient to satisfy such mortgage or other interest of record.
Every conveyance of any interest in real property offered for recordation shall be accompanied by the form under s. 77.22 (2)
Under sub. (1), only instruments that affect an interest in land are entitled to be recorded. A land patent is the instrument by which the government conveys title to portions of the public domain to private individuals. “Land patents," “updates of land patent" and other, similarly-titled documents filed by private individuals that purport to be grants of private land from private individuals to themselves or other private individuals are not true land patents and are invalid on their face and not entitled to recording. OAG 4-12
Conveyances of mineral rights.
The register of deeds shall record all conveyances of mineral interests in the index maintained under s. 59.43 (9)
History: 1977 c. 253
; 2009 a. 98
Lapse and reversion of interests in minerals. 706.057(1)(1)
This section does not apply to an interest in minerals which is owned by the same person who owns the fee simple interest in the surface of the land above the interest in minerals.
(2) Use of an interest in minerals.
In this section, an interest in minerals is used if any of the following occur:
Any minerals are mined in exploitation of the interest in minerals.
A conveyance of mineral interests is recorded under this chapter.
Any other conveyance evidencing a transaction by which the interest in minerals is created, aliened, reserved, mortgaged or assigned is recorded under this chapter.
Property taxes are paid on the interest in minerals by the owner of the interest in minerals.
The owner of the interest in minerals records a statement of claim under sub. (4)
concerning the interest in minerals.
Except as provided in par. (b)
, an interest in minerals lapses if the interest in minerals was not used during the previous 20 years.
An interest in minerals which was not used during the 20-year period prior to July 1, 1984, does not lapse if the interest in minerals is used within 3 years after July 1, 1984.
An interest in minerals which was used during the period from 17 to 20 years prior to July 1, 1984, does not lapse if the interest in minerals is used within 3 years after July 1, 1984.
(4) Statement of claim; recording; requirements.
If the owner of an interest in minerals uses the interest in minerals by recording a statement of claim, the statement of claim shall comply with this subsection. The statement of claim shall contain the name and address of the owner of the interest in minerals, a description of the location and boundary of the interest in minerals and a reference to the recorded instrument which created the interest in minerals. The statement of claim shall be recorded with the register of deeds for the county in which the interest in minerals is located.
(5) Cure of lapse.
The lapse of an interest in minerals under sub. (3)
is cured if the owner of the interest in minerals records a statement of claim complying with all of the requirements of sub. (4)
before the surface owner records a statement of claim under sub. (6) (a)
or before a statement of claim takes effect under sub. (6) (b) 1.
, whichever is later.
(6) Claim of lapsed interest in minerals. 706.057(6)(a)(a)
The owner of the land under which an interest in minerals exists may claim that portion of a lapsed interest in minerals which lies beneath the owner's land by recording a statement of claim. The statement of claim shall contain the name and address of the owner of the land under which the lapsed interest in minerals is located and a description of the land under which the interest in minerals is located. The statement of claim shall be recorded with the register of deeds for the county in which the land is located.
Except as provided in subd. 2.
, a statement of claim which is recorded under par. (a)
before the lapse of the interest in minerals to which the claim applies takes effect when the interest in minerals lapses.
A statement of claim which is recorded under par. (a)
before the lapse of the interest in minerals to which the claim applies is void 6 years after the statement of claim is recorded if the interest in minerals does not lapse within that 6-year period.
(7) Statement of claim; recording; register of deeds' duty.
The register of deeds shall provide copies of the uniform form for statements of claim under subs. (4)
. Upon receipt of a statement of claim under sub. (4)
in the office of the register of deeds, the register of deeds shall record the claim in a manner which will permit the existence of an interest in minerals to be determined by reference to the parcel or parcels of land above the interest in minerals. The claimant shall pay the recording fee under s. 59.43 (2)
The owner of an interest in minerals which is the subject of a claim under sub. (6) (a)
, within 3 years after the claim is recorded with the register of deeds or within 3 years after the claim takes effect as provided under sub. (6) (b) 1.
, whichever is later, may bring an action for a declaratory judgment or declaration of interest on the ownership of the interest in minerals. The action shall be commenced in the circuit court in the county where the interest in minerals is located.
If the court finds that the owner of the interest in minerals used the interest in minerals within the time limits specified under sub. (3)
or that the owner of the interest in minerals recorded a claim under sub. (5)
before the surface owner recorded a claim under sub. (6) (a)
or before the claim took effect as provided under sub. (6) (b) 1.
, whichever is later, the court shall issue a judgment declaring that the interest in minerals is not lapsed.
If the court finds that the owner of the interest in minerals did not use the interest in minerals within the time limits specified under sub. (3)
and did not record the claim under sub. (5)
before the surface owner recorded the claim under sub. (6) (a)
or before the claim took effect as provided under sub. (6) (b) 1.
whichever is later, the court shall issue a judgment affirming the surface owner's claim.
Upon the issuance of a judgment affirming the surface owner's claim or, if no action is brought under par. (a)
, at the end of the 3-year period after the surface owner's claim is recorded or at the end of the 3-year period after the claim takes effect as provided under sub. (6) (b) 1.
, whichever is later, the ownership of the interest in minerals reverts to the owner of the land under which the lapsed interest in minerals is located and title to the interest in minerals is merged with the title to the surface of the land.
(10) Waiver; limitation.
No person may waive or agree to waive the provisions of this section and any waiver or agreement of this type is void.
Due process requires that every owner of a recorded interest, including a mineral interest under this section, be provided written notice of an application for a tax deed. 74 Atty. Gen. 59
Under this section the owner of land under which mineral rights have lapsed must record a claim to the lapsed mineral rights in order to foreclose a separate mineral rights owner from curing the lapse. 79 Atty. Gen. 61
Any instrument may be acknowledged, or its execution otherwise authenticated by its signators, as provided by the laws of this state; or as provided in this section or ch. 140
Any public officer entitled by virtue of his or her office to administer oaths, and any member in good standing of the State Bar of Wisconsin, may authenticate one or more of the signatures on an instrument relating to lands in this state, by endorsing the instrument “Acknowledged," “Authenticated," or “Signatures Guaranteed," or other words to similar effect, adding the date of authentication, his or her own signature, and his or her official or professional title. The endorsement, unless expressly limited, shall operate as an authentication of all signatures on the instrument; and shall constitute a certification that each authenticated signature is the genuine signature of the person represented; and, as to signatures made in a representative capacity, shall constitute a certification that the signer purported, and was believed, to be such representative.
Affidavits shall be authenticated by a certificate of due execution of the instrument, executed by a person entitled to administer oaths.
In addition to any criminal penalty or civil remedy otherwise provided by law, knowingly false authentication of an instrument shall subject the authenticator to liability in tort for compensatory and punitive damages caused thereby to any person.