Leinenkugel v. Kehl

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCOLE
Citation73 Wis. 238,40 N.W. 683
Decision Date22 December 1888
PartiesLEINENKUGEL v. KEHL ET AL.

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.

[40 N.W. 684]

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;McPhe...

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17 practice notes
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...Section 2620, St. 1898; West v. Walker, 77 Wis. 557, 46 N. W. 819;Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468;Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Ellis v. Northern Pac. Ry. Co., 77 Wis. 114, 45 N. W. 811;Grady v. Maloso, 92 Wis. 666, 66 N. W. 808;Draper v. Brown, 115 Wis. 361,......
  • Matter of RCR Corp., Adv. No. 85-0176-11.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Western District of Wisconsin
    • February 14, 1986
    ...the contract. The contract is good between the parties. This was settled as the law of this state by the decision in Leinenkugel v. Kehl, 73 Wis. 238, 40 N.W. 683, which reviewed the earlier decisions of this court and has been consistently followed ever since. Welsh v. Blackburn, 92 Wis. 5......
  • In re Johnson's Will,
    • United States
    • United States State Supreme Court of Wisconsin
    • June 14, 1921
    ...the passing of title; such formality of subscription is only necessary in order that the instrument may be recorded. Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Eadie v. Chambers, 172 Fed. 73, 96 C. C. A. 561, 24 L. R. A. (N. S.) 879, 18 Ann. Cas. 1096, and note. The making of a last wil......
  • Harrass v. Edwards
    • United States
    • United States State Supreme Court of Wisconsin
    • November 24, 1896
    ...for witnessing and acknowledgment are not essential to the sufficiency of a deed as between the parties thereto. Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Gilbert v. Jess, 31 Wis. 110;Slaughter v. Bernards, 88 Wis. 121, 59 N. W. 576;Welsh v. Blackburn, 92 Wis. 562, 66 N. W. 528. But th......
  • Request a trial to view additional results
17 cases
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...Section 2620, St. 1898; West v. Walker, 77 Wis. 557, 46 N. W. 819;Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468;Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Ellis v. Northern Pac. Ry. Co., 77 Wis. 114, 45 N. W. 811;Grady v. Maloso, 92 Wis. 666, 66 N. W. 808;Draper v. Brown, 115 Wis. 361,......
  • Matter of RCR Corp., Adv. No. 85-0176-11.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Western District of Wisconsin
    • February 14, 1986
    ...the contract. The contract is good between the parties. This was settled as the law of this state by the decision in Leinenkugel v. Kehl, 73 Wis. 238, 40 N.W. 683, which reviewed the earlier decisions of this court and has been consistently followed ever since. Welsh v. Blackburn, 92 Wis. 5......
  • In re Johnson's Will,
    • United States
    • United States State Supreme Court of Wisconsin
    • June 14, 1921
    ...the passing of title; such formality of subscription is only necessary in order that the instrument may be recorded. Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Eadie v. Chambers, 172 Fed. 73, 96 C. C. A. 561, 24 L. R. A. (N. S.) 879, 18 Ann. Cas. 1096, and note. The making of a last wil......
  • Harrass v. Edwards
    • United States
    • United States State Supreme Court of Wisconsin
    • November 24, 1896
    ...for witnessing and acknowledgment are not essential to the sufficiency of a deed as between the parties thereto. Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683;Gilbert v. Jess, 31 Wis. 110;Slaughter v. Bernards, 88 Wis. 121, 59 N. W. 576;Welsh v. Blackburn, 92 Wis. 562, 66 N. W. 528. But th......
  • Request a trial to view additional results

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