Harrass v. Edwards

94 Wis. 459 | Wis. | 1896

PinNey, J.

It is evident that the deed from the heirs of Albert A. Little to Melissa M. Little was not executed in the presence of two subscribing witnesses, as required by the statute (R. S. sec. 2216), except as to the twentieth grantor, Henry C. Hurlbert, and was not entitled to be, and was not legally, recorded, except as a conveyance of the inconsiderable interest he had in the property described in it. The attestation by the subscribing witnesses is not general, but restricted to its execution by said Hurlbert. If the attestation could be considered at all equivocal or doubtful, the fact that Phillips, one of the subscribing witnesses, was the notary public who took the acknowledgment of execution by Hurlbert in Rock county, Wisconsin, taken in connection with the other certificates of acknowledgment by all the other grantors, is sufficient to dispel any fair or reasonable doubt. It was held in Hrouska v. Janke, 66 Wis. 252-255, where a deed had been executed by seven grantors, witnessed by only two subscribing witnesses, and acknowledged by four of the grantors before proper officers in Door county, in this state, and by the other three grantors, on the following day, before another proper officer in the adjoining county of Kewaunee, that the court “must presume, under the circumstances, that it was duly witnessed,” and that it did not follow “ that the grantors were not all together when they executed the deed,” and that it was properly witnessed; that it would be a most violent presumption, in the absence of proof to sustain it, to assume that they were not together. In the present case it would, we think, be a violent and unreasonable presumption, in the absence of proof to that effect, to assume that the twenty different grantors in this deed were all present in Eock county, Wisconsin, when it was witnessed by, and the acknowledgment of one of the grantors only was taken before, W. E. Phillips as a notary public. If they were all present and executed the deed in Eock county, why did they not all acknowledge it before Phillips, and how does it happen that all the other certificates bear different previous dates from December 18, 1893, to February 20, 1894?

It is useless, however, to speculate as to the facts, The restricted and limited character of the attestation of the subscribing witnesses must be held conclusive, excluding any presumption that the deed was executed and witnessed as prescribed by the statute. As it was not entitled to be recorded as to nineteen of the twenty grantors, the record actually made of it in the register’s office of the proper county was evidence of a conveyance to the grantee therein of the title of but one of the numerous heirs of Albert A. Little, deceased. Smith v. Garden, 28 Wis. 685; Herren v. Strong, 62 Wis. 223. In order to be entitled to be legally recorded, it was necessary that the deed should have been both witnessed and acknowledged as prescribed by statute. R. S. secs. 2216, 2218. It may, in fact, have been executed by all the grantors, so as to pass the legal title as between them and the grantee, for witnessing and acknowledgment are not essential to the sufficiency of a deed as between the parties thereto. Leinenkugel v. Kehl, 73 Wis. 238; Gilbert v. Jess, 31 Wis. 110; Slaughter v. Bernards, 88 Wis. 121; Welsh v. Blackburn, 92 Wis. 562. But the record furnished no evidence of such execution, and no other evidence was produced.

The plaintiff, as a purchaser, could not be required to accept a defective or unmarketable title. He had an undoubted right to a good title; and, while a title may be good, yet, if there is reasonable doubt of its validity, the purchaser is not-obliged to take it (Allen v. Atkinson, 21 Mich. 351; Shriver v. Shriver, 86 N. Y. 575); and so it follows that a title may be valid, and yet not marketable (Reynolds v. Strong, 82 Hun, 202). A material defect in the title to land is such a defect as will cause a reasonable doubt and just apprehension in the mind of a reasonably prudent and intelligent person, acting upon competent legal advice, and prompt him to refuse to take the deed at a fair value. Eggers v. Busch, 154 Ill. 604, 607; Hellreigel v. Manning, 97 N. Y. 56. If a doubt exists, so as to make it probable that the purchaser’s right may be a matter of legal investigation, or if the title depends upon facts to remove it which can only be established by parol evidence, should the title be attacked, he will not, in general, be compelled to complete the purchase. He will not be compelled to buy a lawsuit. Moore v. Williams, 115 N. Y. 586. In so far as the title depends upon the execution, attestation, acknowledgment, and effect of conveyances as they appear upon the record, they must be free from reasonable doubt upon their face as to their validity, and must have been properly and legally recorded, or be such as are legally entitled to record. Sheehy v. Miles, 93 Cal. 288; Moore v. Williams, supra; McPherson v. Schade, 149 N. Y. 16; Irving v. Campbell, 121 N. Y. 353; Holly v. Hirsch, 135 N. Y. 590-598; Townshend v. Goodfellow, 40 Minn. 312-316; Fairchild v. Marshall, 42 Minn. 18. It is clear that the title offered by the defendants was not such as the plaintiff was bound to accept. The defendants wholly failed' to make out a legal title, except as to the inconsiderable interest of one of Little’s heirs. The plaintiff was not bound to take the risk of being able to show that the deed in question had in fact been so executed as to pass the legal title as between the other nineteen grantors and the grantee. The circuit court properly ■directed a verdict for the plaintiff.

By. the Court.— The judgment of the circuit court is affirmed.