Leinenkugel v. Kehl

Cole, O. J. 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 [241] with proof of the necessary facts would make out a case under the statute. Rut the vital question in the case, and the one upon which the controversy turns, is whether the deed to Mary Allan of August 8, 1866, passed the legal title as between the parties. It appears that that deed was not witnessed nor acknowledged, though in due form and sufficient in other respects to convey the title to the grantee. The contention of the defendants is that a deed not properly witnessed and acknowledged was inoperative to pass the title, even as between the parties thereto, under the statute then existing. "Was, then, that deed valid? 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 [242] sential to transfer the title as between the parties. The reasons for this construction of the statute are stated in the opinions, and need not be repeated. If the question were res integra, we think the same construction should be placed upon the statute. But to now hold, in view of our decisions upon the subject, that a deed must be witnessed and acknowledged to pass the title, would be revolutionary, and might do much mischief. There can be no doubt that the legislature may prescribe the form and solemnities to be observed in a conveyance of real estate within its limits; but the question always is, What requisites are made essential for that purpose in this state? That question will find its answer in the decisions above cited, which we have no purpose to disturb, for we think they are in accord with the great weight of authority upon this subject. It is alleged in the complaint that the defendants and their grantors, who are or were interested in avoiding the deed to Mary Allen, were not any of them purchasers in good faitli for a valuable consideration, so they would be affected by the equities of the plaintiff under that deed though it were not recorded. 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 [243] touching that deed, and it would seem plain that they should be before the court before the plaintiff has the relief which he asks in respect to it. Ve think there is no mis-joinder of causes of action, in view of the facts stated. Story’s Eq. Pl. sec. 284 et seq.; Hamlin v. Wright, 23Wis. 491. 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.