73 Wis. 238 | Wis. | 1888
We agree with the plaintiff’s counsel that it is immaterial on this appeal to inquire whether the action was brought under sec. 3186, B. S., 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
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. 485. 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 w7as executed in 1845, and the ruling in Myrick v. McMillan was followed. McMahon v. McGraw, 26 Wis. 614; Gilbert v. Jess, 31 Wis. 110; McPherson v. Featherstone, 37 Wis. 632,— presented the same question, and were détermined the same way. In Knight v. Leary, 54 Wis. 460, it was held that the certificate of the acknowledgment of a deed was no part of its execution; and this arose under ch. 86, R. S. 1858. Hewitt v. Week, 59 Wis. 444-456, affirms this same principle. Attestation and acknowledgment are formalities required by the statute to entitle the deed to be recorded so as to operate as notice to subsequent purchasers, but are not es
The next point made by the demurrer is that several causes of action had been improperly united. Each of the defendants has or claims an interest in the premises hostile to the deed just referred to. They have a common connection with the subject matter of the action, and they ought to be joined, though they hold separate parcels of land. Indeed, the controversy cannot well be determined without they are before the court. Of course Mary Allen is a proper party, as it is her deed which is asked to be decreed valid, because she claims a part of the premises under another title adverse to that deed. The same is true of Stanley and Kehl. Their interests would be vitally affected by a judgment which should affirm the validity of that deed. The defendants certainly have one common interest
It follows from these views that the order of the circuit court overruling the demurrer to the complaint must be affirmed, and the cause remanded for further proceedings according to law.
By the Gourt.— It is so ordered.