Wilburn v. Land

138 Wis. 36 | Wis. | 1909

Dodge, J.

Legal title or estate, or immediate legal right to possession, are essential prerequisites to the maintenance of an action of ejectment. See. 3074, Stats. (1898); Eaton v. Smith, 19 Wis. 537; Kinney v. Dexter, 81 Wis. 80, 51 N. W. 82; Grindo v. McGee, 111 Wis. 531, 535, 87 N. W. 468. Under sec. 2203, Stats. (1898), the conveyance from John Arquett to the plaintiff of his homestead without his wife’s consent evidenced by her joining in the deed was absolutely void, at least as a conveyance of the legal title. Ferguson v. Mason, 60 Wis. 377, 390, 19 N. W. 420; Whitmore v. Hay, 85 Wis. 240, 250, 55 N. W. 708; Town v. Gensch, 101 Wis. 445, 451, 76 N. W. 1096, 77 N. W. 893. True, this statute had, by construction, prior to its amendment by ch. 45, Laws of 1905, been somewhat emasculated of its protective efficacy, but such construction proceeded no further than to accord to an attempted conveyance without the wife’s signature effect as evidencing an executory contract to convey at some future time and not until all homestead rights had been satisfied. Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395; Town v. Gensch, supra; Jerdee v. Furbush, 115 Wis. 277, 91 N. W. 661. Such a contract, however, is not effective to vest in the grantee either legal title or right of possession. To that end, a court of equity must decide whether, in equity, the conveyance of legal title should be specifically enforced, or plaintiff be left to legal remedies for breach. Hanson v. Michelson, 19 Wis. 498, 508; Whitmore v. Hay, 85 Wis. 240, 249, 55 N. W. 708; Mulligan v. Albertz, 103 Wis. 140, 143, 78 N. W. 1093; Willey v. Hodge, 104 Wis. 81, 80 N. W. 75; Park v. M., St. P. & S. S. M. R. Co. 114 Wis. 347, 353, 89 N. W. 532. It follows necessarily that plaintiff has not shown any right to recover in this action, even if the conveyance by Arquett and his wife of the homestead property to another and consequent abandonment of the premises as a homestead constitutes a condition upon which the deed might become-effective as a contract to convey, — a question which we do not decide.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.