Wiegand v. Gissal

Decision Date02 November 1965
Citation28 Wis.2d 488,137 N.W.2d 412
PartiesAshley O. WIEGAND et al., Respondents, v. Fred E. GISSAL et al., Appellants.
CourtWisconsin Supreme Court

Paul Binzak, Milwaukee, Gerald A. Flanagan, Milwaukee, of counsel, for appellants.

Niebler & Herro, Milwaukee, Chester J. Niebler, Milwaukee, of counsel, for respondents.

HEFFERNAN, Justice.

The first question to be decided is whether the description of the property is so inadequate as to be void under the statute of frauds. The statute (sec. 240.08, Stats.) provides:

'Contract for lease or sale to be in writing. Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.'

In order to satisfy the statute of frauds we have uniformly held that the memorandum or contract must describe with reasonable certainty the property to which it relates. 1

We have held that for a description to be adequate that memorandum cannot merely describe the buildings to be conveyed, but must also describe the land that accompanies these buildings. Stuesser v. Ebel, supra.

The property covered by the option is described in section 17 of the lease. But the description, with the exception of that in regard to a 10-foot easement to the lake, is limited to referring to the buildings:

'* * * the tavern building, the two-family apartment adjacent to the rear of said tavern building, the picnic grounds to the East, the ball grounds to the West * * *.'

This description on its face is uncertain and insufficient, particularly where the pleadings, as here, show the seller owns more contiguous land than is being conveyed. While it can be conceded that we can identify the buildings described, there is no way of knowing the extent of the land areas surrounding them. The landlord, when directed to survey the land to be conveyed, submitted five separate surveys showing each building as an island, surrounded only with a bare minimum of adjoining land area. We agree with the trial judge that the survey was ridiculous, but it does point out the complete inadequacy of the description and the lack of any metes and bounds. While the tenant has submitted a plat showing what reasonable men may have intended, the area that the tenant insists should be conveyed is not so described in the option clause of the lease.

The question is not what reasonable men intended to convey but what they in fact described in the contract or memorandum.

We have allowed extrinsic evidence to be admitted for the purpose of satisfying the statute of frauds if the description itself furnishes some foundation, link, or key to the oral or extrinsic testimony which identifies the property. Stuesser v. Ebel, supra. In the instant case no link appears in the description, nor in fact has any oral or extrinsic testimony been offered to show precisely what was intended. The tenant refers to an iron pipe and a line sighted with a gate market. Had these boundary markers been referred to in the description, they might have constituted the necessary link or connection between the description and identifying data. Under the state of the record, however, there is no intimation that the iron stake had any relevance to the intended conveyance.

We conclude that this case is governed by Stuesser v. Ebel, supra, and Thiel v. Jahns (1947), 252 Wis. 27, 30 N.W.2d 189. In the Thiel case, we held inadequate a description where the agreement was to sell the 'house at Little Chicago.' It appeared in the record that the seller not only owned a house enclosed by a fence but also additional land adjacent to it. The court concluded that the description did not sufficiently describe the property to be conveyed with the house. The court stated:

'* * * 'house' could include the enclosed lawn and garden or even less than that or that it could include the balance of the acreage.' Thiel v. Jahns, supra, at p. 30, 30 N.W.2d at p. 191.

We are faced with precisely the same situation in the instant case. The divergence of the descriptions proposed by the seller and buyer make it clear that the extent of the land to be conveyed is a matter of pure speculation. Stuesser v. Ebel, supra, poses a similar situation. There the contract described the property as, 'the real estate owned by the Sellers and located in the Town of Oak Grove, now known as the 'Dobie Inn' and used in the business of the Sellers.' This court stated, 'Dobie Inn...

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35 cases
  • Eichenseer v. Madison County Tavern League
    • United States
    • Wisconsin Supreme Court
    • May 6, 2008
    ...626 (1965). 4. See Powalka v. State Mut. Life Assurance Co., 53 Wis.2d 513, 518, 192 N.W.2d 852 (1972) (citing Wiegand v. Gissal, 28 Wis.2d 488, 137 N.W.2d 412 (1965), rehearing denied, 28 Wis.2d 488, 495a, 138 N.W.2d 740-b, 28 Wis.2d 488, 138 N.W.2d 740 (1966)); Lucas v. Godfrey, 161 Wis.2......
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    ...N.W.2d 873 (1987); Capitol Sand and Gravel Co. v. Waffenschmidt, 71 Wis.2d 227, 237 N.W.2d 745 (1975). See also Wiegand v. Gissal, 28 Wis.2d 488, 495a, 137 N.W.2d 412 (1965), upon which the Powalka court ...
  • Prezioso v. Aerts
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    • Wisconsin Court of Appeals
    • November 4, 2014
    ...It is only necessary that the instrument describe the easement location with “reasonable certainty.” See Wiegand v. Gissal, 28 Wis.2d 488, 492, 137 N.W.2d 412 (1965). The Declaration does so, and the extrinsic evidence relied on by the circuit court has an adequate foundation in the Declara......
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    • Wisconsin Supreme Court
    • June 2, 1976
    ...contract for conveyance or holding of real property is evidenced and specifically referable by a part performance, Wiegand v. Gissal (1965), 28 Wis.2d 488, 137 N.W.2d 412, 138 N.W.2d 740, or when other equitable considerations are applicable, Bratt v. Peterson (1966), 31 Wis.2d 447, 143 N.W......
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