Schapiro v. Security Sav. and Loan Ass'n

Decision Date07 February 1989
Docket NumberNo. 88-0270,88-0270
Citation149 Wis.2d 176,441 N.W.2d 241
PartiesVioletta SCHAPIRO, d Plaintiff-Appellant, v. SECURITY SAVINGS AND LOAN ASSOCIATION, Lee Barczak, Nancy Barczak and Rona Steingart, Defendants-Respondents.
CourtWisconsin Court of Appeals

Meissner & Tierney, S.C. by Cynthia M. Obremski and Susan J. Marguet, Milwaukee, for Security Sav. and Loan Ass'n, Lee Barczak and Nancy Barczak.

Before MOSER, P.J., and SULLIVAN and GARTZKE, JJ.

MOSER, Presiding Judge.

Violetta Schapiro (Violetta) filed suit to establish an interest in real estate. Named as defendants were Lee and Nancy Barczak, the property owners, Security Savings and Loan Association (Security), holder of a first mortgage lien, and Rona Steingart, a prior owner. The trial court granted judgment against Violetta and quieted title in the Barczaks and Security. 1 The court also awarded them attorney's fees pursuant to sec. 814.025, Stats., the frivolous claims statute. Violetta appeals from the judgment. Because we conclude that the undisputed facts show that Violetta had abandoned her homestead rights in the property and because sec. 706.09, Stats., bars her claim, we affirm. We also grant the motion of the Barczaks and Security for attorney's fees on appeal.

Violetta's husband, S.A. Schapiro (S.A.), owned a parcel of residential property in Milwaukee county, and the couple resided on the property. In 1976, S.A. conveyed the property to his brother by quit claim deed. S.A. signed Violetta's name to the deed pursuant to a power of attorney she had executed in 1967.

S.A. now claims that the purpose of the conveyance was to reduce his marital estate before divorce. A few days after the deed was executed, Violetta moved from the residence and filed for a divorce. While the divorce was pending, S.A. also vacated the property. Neither S.A. nor Violetta have lived on the property since then.

In late 1976, S.A.'s brother conveyed the property to Steingart, their sister. Subsequently, in March 1977, S.A. executed a quit claim deed to Steingart. The deed failed to indicate marital status and contained a notation that the property was not homestead. The deed was not signed either by Violetta or on her behalf.

After S.A. moved out, Steingart leased the property and exercised full management and control over it. She did not account to S.A. for any revenues nor consult with him before incurring expenses. In 1983, she listed the property with a realtor and ultimately sold the premises to the Barczaks, receiving cash and a note. Security, which made a purchase money loan, was granted a first mortgage lien on the property. The deed to the Barczaks was executed on November 30, 1983, and recorded on December 8, 1983.

Violetta first learned in March 1977, that S.A. had conveyed the property. She moved to implead Steingart and the brother in the pending divorce case in order to cancel S.A.'s deeds. Ultimately, Violetta and S.A. reconciled, the divorce and the claim for cancellation of the deeds were dismissed, and the record was sealed. Violetta now alleges that Steingart orally agreed to reconvey the property whenever demand was made, an agreement Steingart denies. No demand was made until after April 1986, when Violetta first learned of the sale to the Barczaks. Moreover, Violetta did not record any notice of her claim in the register of deeds office until May 1986.

Violetta also filed this lawsuit in May 1986. In addition to seeking ownership rights in the property, she sought possession of the premises, cancellation of the deeds and mortgage, and money damages. Violetta later filed a supplemental complaint against Steingart seeking a constructive trust on one-half of the income Steingart received from the sale. After the Barczaks and Security filed counterclaims All parties filed motions for summary judgment. The trial court concluded that Violetta had no homestead rights. Furthermore, the court held that even if S.A.'s deeds were void because Violetta had a homestead right, her claim was barred by sec. 706.09, Stats. Violetta's complaint as to the Barczaks and Security was dismissed with prejudice, and the affidavit she filed with the register of deeds in 1986 was canceled. The trial court also found that Violetta's claims against the Barczaks and Security were frivolous pursuant to sec. 814.025(3)(b), Stats., and entered judgment against her for costs and attorney's fees in the amount of $59,712.84. The Barczaks and Security voluntarily dismissed their counterclaims against Violetta.

against Violetta, S.A. was allowed to intervene.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Sec. 802.08(2), Stats. In reviewing a grant of summary judgment, this court applies the summary judgment methodology in the same manner as the trial court, and our review is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).

HOMESTEAD RIGHTS

Violetta's claim is relatively simple: the property was her homestead; S.A. could not convey the homestead without her consent; therefore, the deeds from S.A. were void. If the deeds from S.A. were void, Steingart did not have title to convey to the Barczaks. To support her claim, Violetta alleges that although she moved from the property, she did not intend to abandon it as a homestead.

Section 706.02(1)(f), Stats., provides that the conveyance of "any interest of a married person in a homestead" is not valid unless it "[i]s signed, or joined in by separate conveyance, by or on behalf of each spouse." A conveyance that does not satisfy the statute is void and cannot be enforced against either spouse. State Bank v. Christophersen, 93 Wis.2d 148, 157, 286 N.W.2d 547, 552 (1980).

An early version of this statute was interpreted in Godfrey v. Thornton, 46 Wis. 677, 1 N.W. 362 (1879). The statute was held to create a personal disability in the husband that prevented him from conveying any interest in the homestead unless his wife waived the disability either by signing the conveyance or by executing a separate conveyance. Godfrey, 46 Wis. at 683-86, 1 N.W. at 363-66. 2 The statute did not give the wife any interest in the homestead property; it merely gave her limited personal control over her husband's ability to alienate his own estate. Id.

Homestead status can continue if the property is constructively "owned and occupied" during a temporary absence. Jarvais v. Moe, 38 Wis. 440, 445 (1875). For the status to continue, however, the wife's removal from the property must be for a fixed and temporary purpose. Pedersen v. Nielsen, 212 Wis. 608, 612, 250 N.W. 400, 401 (1933). Unless the removal is made with a certain and abiding intention to return to the premises and reside there, the homestead status is abandoned. Id. A vague intention to return someday is insufficient. Id.

Violetta admits that when she left the property in May 1976, she intended to file for divorce and to terminate the marital relationship. That intention is inconsistent with any intent to reside on the property in the future. Consequently, her removal was not for a temporary purpose, and she abandoned the homestead. Likewise, S.A. moved from the property before he executed the 1977 deed. 3 Violetta's intent to return to the property was not formulated

until after the couple reconciled in late 1977. Consequently, when S.A. executed the 1977 quit claim deed to Steingart, Violetta's consent was unnecessary because the property was not her homestead. 4

APPLICATION OF SEC. 706.09, STATS.

Violetta's claim against the Barczaks and Security is also barred by sec. 706.09, Stats. (1983). 5 That section provides as follows:

(1) A purchaser for a valuable consideration, without notice as defined in sub. (2), and his successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:

....

(e) Dower or homestead of the spouse of any transferor of an interest in real estate, where the recorded conveyance purporting to transfer the same states that the person executing it is single, unmarried or widowed; or fails to indicate the marital status of such transferor, and where such conveyance has, in either case, appeared of record for 5 years. This paragraph shall not apply to the interest of a married person who is described of record as holder in joint tenancy with such transferor.

(f) Any defect or insufficiency in authorization of any purported officer, partner, agent or fiduciary to act in the name or on behalf of any corporation, partnership, principal, trust, estate, minor, incompetent or other holder of an interest in real estate purported to be conveyed in a representative capacity, after the conveyance has appeared of record for 5 years.

....

(2) A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:

(a) Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed...

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    ...to the benefits of [§ 706.09], a purchaser must not have notice of the adverse claim...." Schapiro v. Security Savings and Loan Assoc., 149 Wis.2d 176, 186, 441 N.W.2d 241 (Ct.App.1989). Though § 706.08 does not use the word "notice," the requirement that a bona fide purchaser lack notice o......
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