State v. Barkdoll, 78-272

• Decision Date: 25 November 1980
• Docket Number: No. 78-272,78-272
• Citation: 298 N.W.2d 539,99 Wis.2d 163
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Harold BARKDOLL, Willard Barkdoll and Mabel Emilie Barkdoll, Anna Barkdoll, Eunice B. Schneider, and Phillip Schneider, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 539

298 N.W.2d 539

99 Wis.2d 163

STATE of Wisconsin, Plaintiff-Appellant, v. Harold BARKDOLL, Willard Barkdoll and Mabel Emilie Barkdoll, Anna Barkdoll, Eunice B. Schneider, and Phillip

Schneider, Defendants-Respondents-Petitioners.

No. 78-272.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 29, 1980.

Decided Nov. 25, 1980.

Richard Bolte, Wausau, submitted briefs for defendants-respondents-petitioners.

Bronson C. La Follette, Atty. Gen., and Charles R. Larsen, Asst. Atty. Gen., submitted brief for plaintiff-appellant.

ABRAHAMSON, Justice.

The State of Wisconsin commenced an action in 1972 to quiet title to certain land in Oneida County, Wisconsin. The defendants responded claiming ownership of the land by adverse possession.

After trial, the circuit court found title to the property to be in the State beginning in 1907 and continuing thereafter, but held that the defendants had acquired ownership of the property by adverse possession. On appeal, in an unpublished opinion filed September 25, 1979, the court of appeals found title to be in the State beginning in 1907 and continuing thereafter, but concluded that the defendants had not established adverse possession. The court of appeals reasoned that prior to the enactment of the statute in 1931 permitting adverse possession against the State, ¹ title to state-owned land could not be acquired by adverse possession and that defendants did not establish the requisite forty years of adverse possession subsequent to 1931 as the statute required. The court of appeals remanded the case for entry of judgment quieting title in the State. This court granted defendants' petition for review to consider the applicability of sec. 893.15, Stats., to the instant case. We conclude, for the reasons set forth, that the State's claim is not barred by sec. 893.15, Stats., and we affirm the decision of the court of appeals.

On review, the following facts must be considered as no longer in dispute. The State acquired the land in question by warranty deed dated December 21, 1907 and recorded on February 17, 1908. On May 20, 1912, the county clerk of Oneida county executed a tax deed to the land in question "for and on behalf of said State (of Wisconsin) and the County of Oneida" to Kate Pier. This tax deed was recorded on May 20, 1912. Within a month after the execution and recording of this tax deed the Oneida County Board recognized its error in taxing and deeding state-owned lands and cancelled its tax deed to Kate Pier. No instrument was recorded from 1912 to 1974 to reflect this cancellation of the tax deed. In October 1974, the county clerk of Oneida county prepared a synopsis of the minutes of the Oneida County Board meeting of June 13, 1912 setting forth the board's cancellation of the tax deed and its allowance of Kate Pier's claim for the amount of illegal taxes she paid. The synopsis was recorded on October 8, 1974, sixty-two years after the board meeting and two years after the State commenced this action.

The defendants argue that Kate Pier was record-owner of the land, that they acquired the title to the land by adverse possession as against Kate Pier, and that the State is barred by sec. 893.15, Stats., from asserting its claim based on an unrecorded instrument executed more than thirty years prior to the date of the commencement of the action.

Before we reach the question of the applicability of sec. 893.15, Stats., we must deal with defendants' contention that, for purposes of determining defendants' claim of adverse possession, Kate Pier, not the State of Wisconsin, must be considered the owner of the land in question. Defendants argue that because the last conveyance on record between 1912 and 1974 was the tax deed to Kate Pier, she owned the land and defendants' claim of adverse possession should be deemed to run against her. Adverse possession for the requisite statutory time having been established against an owner other than the State, defendants assert they have acquired title to the land in question by adverse possession.

The force of this argument is dependent upon the effect of the unrecorded cancellation of the tax deed. Defendants conclude that the unrecorded instrument is ineffective as against their claim. This conclusion misconstrues the protection afforded by the recording act.

In the suit before us Kate Pier has not and does not claim ownership of the land. Irrespective of the State's failure to record, Kate Pier could not claim ownership as against the State. Kate Pier was a party to the transaction cancelling the deed. An unrecorded instrument is fully effective between the parties to the transaction. ²

The question of who can claim that an unrecorded instrument is valueless depends on the recording statutes. ³ The recording statutes define what unrecorded instruments are ineffective as to what classifications of persons. Sec. 706.08, Stats., a race-notice recording statute, provides that an unrecorded conveyance is void as against any subsequent purchaser of the real estate in good faith and for a valuable consideration whose conveyance is first recorded. ⁴ Thus the statute protects a prior unrecorded interest unless a claimant records his or her interest first and is a purchaser in good faith and for a valuable consideration. Unless a claimant meets these statutory requirements, the recording act provides no protection to the claimant as against a prior unrecorded interest. ⁵

The defendants do not meet these requirements. They are not subsequent purchasers in good faith and for a valuable consideration of the real estate whose conveyance was first recorded. Because they are not persons within the statutorily defined class of persons protected by sec. 706.08, Stats., against an unrecorded conveyance, defendants cannot challenge the State's claim of ownership on the ground that the State failed to record the cancellation of the tax deed which would have put record title to the land in the State. Thus, as to these defendants the State has legal title to the land, and defendants must prove adverse possession against the State.

Because the land in question was state-owned land during the time period in question, defendants' claim of adverse possession cannot be sustained. The court of appeals decision correctly states that, in the absence of enabling legislation, title to state lands cannot be acquired by adverse possession. Wisconsin did not enact such legislation until 1931. Sec. 893.10, Stats. Because the defendants did not prove that they adversely possessed the land for forty years after 1931, their claim of adverse possession cannot be sustained.

We turn now to determine whether sec. 893.15, Stats., bars the State's claim.

Sec. 893.15, Stats., in pertinent part, provides as follows:

"893.15 Action concerning real estate. (1) Except as provided in sub. (5), no action affecting the possession or title of any real estate shall be commenced by any person, the state, or any subdivision thereof after January 1, 1943, which is founded upon any unrecorded instrument executed more than 30 years prior to the date of commencement of such action, or upon any instrument recorded more than 30 years prior to the date of commencement of the action, or upon any transaction or event occurring more than 30 years prior to the date of commencement of the action, unless within 30 years after the execution of such unrecorded instrument or within 30 years after the date of recording of such recorded instrument, or within 30 years after the date of such transaction or event there is recorded in the office of the register of deeds of the county in which the real estate is located, some instrument expressly referring to the existence of such claim, or a notice setting forth the name of the claimant, a description of the real estate affected and of the instrument or transaction or event on which such claim is founded, with its date and the volume and page of its recording, if it be recorded, and a statement of the claims made. This notice may be discharged the same as a notice of pendency of action. Such notice or instrument recorded after the expiration of 30 years shall be likewise effective, except as to the rights of a purchaser for value of the real estate or any interest therein which may have arisen prior to such recording.

"...

"(4) This section shall be construed to effect the legislative purpose of barring all claims to an interest in real property, whether dower (which for the purpose of this section shall be considered as based on the title of the husband without regard to the date of marriage) inchoate or consummate, curtesy, remainders, reversions and reverter clauses in covenants restricting the use of real estate, mortgage liens, old tax deeds, inheritance, gift and income tax liens, rights as heirs or under wills, or any claim of any nature whatsoever, however denominated, and whether such claims are asserted by a person sui juris or under disability, whether such person is within or without the state, and whether such person is natural or corporate, or private or governmental, unless within such 30-year period there has been recorded in the office of the register of deeds some instrument expressly referring to the existence of such claim, or a notice pursuant to this section. This section does not apply to any action commenced by any person who is in possession of the real estate involved as owner at the time the action is commenced, nor does this section apply to any real estate or interest therein while the record title thereto remains in a railroad corporation or a public service corporation as defined in s. 184.01, or any trustee or receiver thereof, or to claims or actions founded upon mortgages or trust deeds executed by such corporations, or trustees or receivers thereof; nor does this section apply to any real estate or interest therein while the record title thereto remains in the state or any political ...