Leinenkugel v. Kehl

• Decision Date: 22 December 1888
• Citation: 73 Wis. 238,40 N.W. 683
• Parties: LEINENKUGEL v. KEHL ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 238

40 N.W. 683

LEINENKUGEL

v.KEHL ET AL.

Supreme Court of Wisconsin.

December 22, 1888.

Appeal from circuit court, Chippewa county.

Action by Jacob Leinenkugel against J. B. Kehl, L. C. Stanley, and Mary Allen, to quiet his title to certain land claimed by defendants. From a judgment overruling a demurrer to the complaint defendants appeal.Marshall & Jenkins, for appellants.

Hollon Richardson, ( H. H. Hayden, of counsel,) for respondent.

COLE, C. J.

We agree with the plaintiff's counsel that it is immaterial on this appeal to inquire whether the action was brought under section 3186, Rev. St., or under the general powers of a court of equity to quiet title to real estate. In either aspect the plaintiff would be entitled to the relief asked if the evidence sustained the allegations of the complaint. The plaintiff alleges that at the commencement of the action he was the owner in fee-simple, and was in possession of the real estate described; and this allegation with proof of the necessary facts would make out a case under the statute. But the vital question in the case, and the one upon which the controversy turns, is whether the deed to Mary Allen of August 8, 1866, passed the legal title as between the parties. It appears that that deed was not witnessed nor acknowledged, though in due form, and sufficient in other respects to convey the title to the grantee. The contention of the defendants is that a deed not properly witnessed and acknowledged was inoperative to pass the title, even as between the parties thereto, under the statute then existing. Was, then, that deed valid? This question is hardly an open one in this court. In Myrick v. McMillan, 13 Wis. *188, (decided in 1860,) it was held that an acknowledgment of a deed by the grantor was not essential to pass the legal title as between the parties to the instrument. It is true, the conveyance in that case was executed under the territorial statute of 1839. But there is no substantial difference between the territorial and state statute upon this subject, as an examination will show. The next case which involved the question is Quinney v. Denney, 18 Wis. *486. In that case we are confident that the deed under which the respondent claimed was neither witnessed nor acknowledged, though the report is not clear upon this point. The deed was executed in 1845, and the ruling in Myrick v. McMillan was followed. McMahon v. McGraw, 26 Wis. 614;Gilbert v. Jess, 31 Wis. 110;McPherson v. Featherstone, 37 Wis. 632,--presented the same questions, and were determined the same way. In Knight v. Leary, 54 Wis. 460, 11 N. W. Rep. 600, it was held that the certificate of acknowledgment of a deed was no part of its execution; and this arose under chapter 86, Rev. St. 1858. Hewitt v. Week, 59 Wis. 444-456, 18 N. W. Rep. 417, affirms this same principle. Attestation and acknowledgment are formalities required by the statute to entitle the deed to be recorded, so as to operate as notice to subsequent purchasers, but are not essential to transfer the title as between the parties. The reasons for this construction of the statute are stated in the opinions, and need not be repeated. If the question were res integra, we think the same construction should be placed upon the statute. But to now hold,...