153 Wis. 389 | Wis. | 1913
The trial judge reached the conclusion that the deed from Bosenbaum to the corporation was void as to the corporation because of noncompliance with the provisions of sec. 1770&, Stats.; that the corporation having no title could convey none to Clare, and that Clare had nothing which he could mortgage to the bank or deed to the defendant Morse, and that therefore the mortgage was void and of no effect and could not be foreclosed.
He further held that the effect of ch. 142, Laws of 1911, was to validate the deed from Bosenbaum to the corporation and vest title in the latter, but that the grantees of the corporation did not derive any benefit from the statute because it did not affect pending actions. He further concluded that, the statute referred to having divested Bosenbaum of his title and vested it in the corporation prior to the conveyance by quitclaim deed to the bank, he had no title to convey when this deed was executed, and that therefore neither the bank nor the plaintiff secured any interest under the quitclaim deeds.
When Clare executed the mortgage to the bank he was in
The only remaining question which it is necessary to treat is the effect of the quitclaim deeds from Rosenbaum to the bank and from the bank to the plaintiff. If the corporation took nothing under the deed from Rosenbaum, then Rosen-baum did not part with his title. The ownership of the property rested in some one and that some one must be either Rosenbaum or his grantee. If it went to the grantee the mortgage would be entirely regular. If it did not, then Rosenbaum had the right to dispose of the property to whomsoever he saw fit. He evidently did not want to take advantage of the technicality which would permit him to sell the premises a second time, and he deeded to the bank, the then holder of the mortgage, for the apparent purpose of validating the attempted transfer of the property by the corporation. He had a perfect right to do this. - The circuit judge concluded that under eh. 142, Laws of 1911, whatever title Ros-enbaum had was vested in the corporation and that therefore he had nothing to convey and his grantees took nothing by the conveyance. The learned circuit judge was also of the opinion that the grantees of the corporation, under the warranty deed which it had given, could not claim any benefit from the after-acquired title of the corporation because the statute did not affect pending actions.
If the statute did not affect pending actions, then we think it would not operate to transfer title from Rosenbaum to* the corporation, because the present action was pending when the statute was passed.
We do not decide that the legislature could not pass a statute such as the trial judge construed this to be. The question is not before us, because the effect of the law was not to immediately transfer title to the corporation from its grantor. The statute reads as follows:
*395 “1. Any corporation organized otherwise than under tbe laws of this state, having acquired, or attempted to acquire, legal title by deed, or lease to any real property in this state, before complying with the terms of section 17705 of the statutes, or acts amendatory thereof, and which has thereafter, and before the passage of this act, complied with said section, shall be and is hereby relieved from any disability provided in said statute or prohibition therein contained, so far as said section relates to the acquisition and holding of the property so acquired, or attempted to be acquired.
“2. Any person claiming that the legal title of any corporation or of any person claiming by, through, or under such corporation, to any real property acquired, or attempted to be acquired, is invalid by reason of the failure of any corporation coming within the terms of subsection 1 of this act, to comply with section 17706 of the statutes, or acts amenda-tory thereof, shall commence action to recover the property, or to declare the legal title of said corporation void, or interpose a defense on such grounds, within one year from the passage and publication of this act, and in case of failure to do so his right of action or defense, based upon the failure to comply with said section by any such corporation, shall be deemed to have expired; provided that this act shall not affect any action now pending.” Laws of 1911, ch. 142.
This is in the nature of a statute of limitation. It makes it incumbent on the party dealing with the corporation to assert his right by action or defense within one year from the passage^ of the act. If he does not do so, he will be barred from thereafter making a claim. Title was not taken away by the statute. It could be asserted at any time within the period stated. If it was not so asserted, the corporation in effect got title at the expiration of the year by force of the statute. The act allowed the party dealing with the corporation a year in which to disaffirm his contract. If he did not do so, it in effect became validated. This is the construction placed on the act in Lanz-Owen Co. v. Garage E. M. Co. 151 Wis. 555, 139 N. W. 393.
The effect of the quitclaim deeds from Rosenbaum to the
' By the Court. — The judgment of the circuit court is reversed,'and the cause is remanded with directions to enter a judgment of foreclosure and sale in accordance with this opinion.