138 Wis. 36 | Wis. | 1909
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.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.