Glinski v. Sheldon

Decision Date27 March 1979
Docket NumberNo. 76-679,76-679
Citation276 N.W.2d 815,88 Wis.2d 509,5 ALR4th 1298
Parties, 5 A.L.R.4th 1298 James H. GLINSKI and Sandra A. Glinski, his wife, Plaintiffs-Appellants, v. Richard S. SHELDON, Jr., and Laura G. Sheldon, his wife, Defendants-Respondents.
CourtWisconsin Supreme Court

John G. Wylie, Stephen A. Seifert and Patterson, Jensen, Wylie & Silton, S. C., Appleton, on brief, for plaintiffs-appellants.

G. L. MacKenzie and Curtis, MacKenzie & Haase, S. C., Oshkosh, on brief, for defendants-respondents.

COFFEY, Justice.

This is an appeal from an order entered on February 7, 1977 dismissing the plaintiffs-appellants' amended complaint. The plaintiffs-appellants are James H. Glinski and his wife, Sandra, (hereinafter the Glinskis); the defendants- respondents are Richard S. Sheldon, Jr. and his wife, Laura G. Sheldon. The Glinskis seek money damages from the Sheldons for their failure to convey residential property located in Clayton, Wisconsin pursuant to the terms of a written contract executed on February 7, 1975. The trial court dismissed the plaintiffs' action as sec. 706.01(7) and 706.02(1)(f), Stats., provides that the ownership of homestead real estate cannot be transferred upon the signature of only one spouse and that Mrs. Sheldon had not signed or approved the conveyance contract.

On February 7, 1975, the Glinskis submitted an offer to purchase the residential property of Mr. and Mrs. Richard S. Sheldon, Jr. at 2590 Oakcrest Drive in the town of Clayton. The Glinskis offered the sum of $33,900.00 for the property including certain household appliances and draperies. The offer provided for an earnest money cash deposit of $50.00, together with the promise of an additional $50.00 earnest money upon the acceptance of the offer on or before February 12, 1975. The Glinskis' offer was subject to the following conditions: the sale of their residence located at 628 Tayco Street, Neenah, Wisconsin for not less than $21,000.00 and the Glinskis being able to procure financing in the sum of $24,000.00 at an annual interest rate not to exceed 9% For a term of twenty-five years. The Glinskis' signed offer to purchase also recited that they would produce a financing commitment within two weeks after receiving a firm offer on the Tayco Street property and the real estate closing would be held on or before April 18, 1975 with occupancy being given the following day.

The offer was found unacceptable to Mr. Sheldon and he made a counter offer providing for the following: an additional $950.00 down payment, an extension of the closing date to on or before June 15, 1975 and that the financing commitment must be submitted by February 21, 1975. Further, the Oakcrest Drive property was to remain on the market and in the event of a more acceptable offer, the Glinskis would have five working days to remove all contingencies from their offer; alternatively, Sheldon offered to remove the home from the market in exchange for a sales price of $34,500.00. Although the offer to purchase named Mr. and Mrs. Richard Sheldon as the present occupants of 2590 Oakcrest Drive, the counter offer was signed only in the name of Richard S. Sheldon, Jr. without a representation that he was acting for or on behalf of his wife, Laura Sheldon.

The counter offer was accepted in part and altered as the Glinskis requested that the cash amount of the earnest money deposit be $100.00 and the $900.00 remainder be secured with a promissory note. Mr. Sheldon agreed to this proposal when he affixed his signature to the document. The offer to purchase and counter offer were drafted by Shelley Woller, a real estate broker associated with Norm Fredrick Realtors. The real estate agency was named to act as the escrow agent for the earnest money deposit and was designated to receive the financing commitment when procured by the Glinskis.

In preparation for the June 15th real estate closing, the Glinskis sold their home in Menasha on April 16, 1975. On June 13, 1975, two days prior to the agreed upon closing date, the Sheldons notified the Glinskis they would not convey the subject property and no reason was given for their refusal to consummate the real estate purchase.

On July 16, 1975 the Glinskis filed suit against Richard S. Sheldon, Jr., individually, alleging breach of the written contract for the sale of the real estate. Mr. Sheldon answered, raising the affirmative defense that the property was jointly owned by him and his wife and Mrs. Sheldon was not a party to the contract for sale of the real estate, thus rendering the contract void and unenforceable as contrary to sec. 706.02, Stats. A demurrer was filed on the basis of the facts recited in the answer's affirmative defense. The Glinskis stated in their motion for an order striking the answer and demurrer that the pleadings were "inconsistent and irregular when joined." The record does not reflect the trial court's reasoning for granting the motion striking the demurrer. On October 31, 1975, the Glinskis amended their complaint naming Laura Sheldon as a party to the action.

The amended complaint recites that at all times the Glinskis were ready, willing and able to perform the conditions of the contract and had in fact performed all conditions specified in the sale agreement. The complaint admits that the property was held in joint tenancy but that Mr. Sheldon contracted for the sale of the home as Mrs. Sheldon's agent, with her knowledge, consent and approval. It is further alleged that the Glinskis, relying upon Sheldon's representations and conduct, sold their home and purchased another, suffering to their detriment a financial loss in the sale and purchase. The complaint also recites that Mrs. Sheldon acquiesced in the execution of the real estate contract that was subsequently breached. The complaint makes note of the fact that the June 15th closing date was agreed upon in order that the Sheldon children be able to complete the school year at the schools they were then attending.

The amended complaint seeks damages in the sum of $20,000.00 and specifies their losses in the following respects:

"(a) The plaintiffs sustained a loss of the benefit of the bargain price they had negotiated for the defendants' property.

"(b) The plaintiffs incurred extra and extraordinary moving expenses as a result of the defendants' breach.

"(c) The plaintiffs sustained a loss as a result of being forced to purchase a suitable residence for themselves and their family without the opportunity of having the time to bargain, causing them to have to pay a price greater than the fair market value of the property they had to purchase.

"(d) The plaintiffs incurred other consequential expenses in their new residence, including but not limited to having to purchase a new stove, new drapes, pay extra appraisal fees, attorney fees, and recording expenses.

"(e) The plaintiffs were put to great expense in having to incur attorney fees expense to commence this action against the defendants."

The issue on appeal:

Does sec. 706.04 bar a husband and wife from asserting a sec. 706.02(1)(f) homestead defense when a contract for the sale of homestead property lacks the signature of each spouse as required in sec. 706.02(1)(f)? 1

In accordance with secs. 706.01 and 706.02, Stats. (1973), the following language expresses the formal requirements of a valid real estate contract conveying homestead property:

Sec. 706.01. Scope, definitions, construction.

"(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.

"(2) . . .

"(3) A 'conveyance' is a written instrument, evidencing a transaction governed by this chapter, which satisfies the requirements of s. 706.02.

"(4) '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.

"(5) . . ."

"(6) 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.

"(7) '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. " (emphasis supplied.)

Sec. 706.02. Formal requisites.

"(1) Transactions under s. 706.01(1) shall not be valid unless evidenced by a conveyance which : (emphasis supplied.)

"(a) Identifies the parties; and

"(b) Identifies the land; and

"(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

"(d) Is signed by or on behalf of each of the grantors; and

"(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and

"(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; And

"(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." (emphasis supplied).

The parties to this appeal do not dispute that the property in question was jointly owned and that it constituted a homestead property as described in sec. 706.01(7). Additionally,...

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