State Codes and Statutes

Statutes > Wisconsin > 706 > 706.02

706.02

706.02 Formal requisites.

706.02(1)

(1) Transactions under s. 706.001 (1) shall not be valid unless evidenced by a conveyance that satisfies all of the following:

706.02(1)(a)

(a) Identifies the parties; and

706.02(1)(b)

(b) Identifies the land; and

706.02(1)(c)

(c) Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and

706.02(1)(d)

(d) Is signed by or on behalf of each of the grantors; and

706.02(1)(e)

(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and

706.02(1)(f)

(f) Is signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01 (7) except conveyances between spouses, but on a purchase money mortgage pledging that property as security only the purchaser need sign the mortgage; and

706.02(1)(g)

(g) Is delivered. Except under s. 706.09, a conveyance delivered upon a parol limitation or condition shall be subject thereto only if the issue arises in an action or proceeding commenced within 5 years following the date of such conditional delivery; however, when death or survival of a grantor is made such a limiting or conditioning circumstance, the conveyance shall be subject thereto only if the issue arises in an action or proceeding commenced within such 5-year period and commenced prior to such death.

706.02(2)

(2) A conveyance may satisfy any of the foregoing requirements of this section:

706.02(2)(a)

(a) By specific reference, in a writing signed as required, to extrinsic writings in existence when the conveyance is executed; or

706.02(2)(b)

(b) By physical annexation of several writings to one another, with the mutual consent of the parties; or

706.02(2)(c)

(c) By several writings which show expressly on their faces that they refer to the same transaction, and which the parties have mutually acknowledged by conduct or agreement as evidences of the transaction.

706.02 - ANNOT.

History: 1971 c. 211 s. 126; 1977 c. 177; 1999 a. 85.

706.02 - ANNOT.

There can be no waiver of the necessity of a spouse's joining in a deed of a homestead and no finding of agency will sustain the deed. Wangen v. Leum, 46 Wis. 2d 60, 174 N.W.2d 266 (1970).

706.02 - ANNOT.

In pleading a contract that is subject to the statute of frauds, it is not necessary to allege facts to establish that the contract complies with the statute or is within its exceptions. Ritterbusch v. Ritterbusch, 50 Wis. 2d 633, 184 N.W.2d 865 (1971).

706.02 - ANNOT.

An option to purchase land must be in writing and cannot be modified orally, but a seller may orally agree to accept payment in full rather than in installments. Kubnick v. Bohne, 56 Wis. 2d 527, 202 N.W.2d 400 (1972).

706.02 - ANNOT.

The test of undue influence to set aside a will is also applicable in order to void an inter vivos transfer due to undue influence. Ward v. Ward, 62 Wis. 2d 543, 215 N.W.2d 3 (1976).

706.02 - ANNOT.

Standing alone, an added provision in a 30-day option agreement to purchase real estate did not comply with the statute of frauds. Edlebeck v. Barnes, 63 Wis. 2d 240, 216 N.W.2d 551 (1974).

706.02 - ANNOT.

An oral contract for the conveyance of an interest in land is void unless there is a memorandum that conforms to the statute of frauds. Trimble v. Wis. Builders, Inc. 72 Wis. 2d 435, 241 N.W.2d 409 (1976).

706.02 - ANNOT.

When a contract for the sale of land with an indefinite description is taken out of the statute of frauds by part performance, extrinsic evidence admissible but for the statute of frauds may be introduced to provide the description. Clay v. Bradley, 74 Wis. 2d 153, 246 N.W.2d 142 (1976).

706.02 - ANNOT.

The question under sub. (1) (b) of whether property boundaries are identified to a reasonable certainty is for the jury to determine with the aid of all competent extrinsic evidence. Zapuchlak v. Hucal, 82 Wis. 2d 184, 262 N.W.2d 514 (1978).

706.02 - ANNOT.

The homestead defense under s. 706.02 (1) (f) is not defeated by s. 706.04, but a tort claim may exist against a signing spouse who misrepresents the non-signing spouse's acquiescence. Glinski v. Sheldon, 88 Wis. 2d 509, 276 N.W.2d 815 (1979).

706.02 - ANNOT.

The defense of the statute of frauds is waived if not raised in the trial court. Hine v. Vilter, 88 Wis. 2d 645, 277 N.W.2d 772 (1979).

706.02 - ANNOT.

A mortgage fraudulently executed by the use of a forged signature of one grantor was wholly void. State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 286 N.W.2d 547 (1980).

706.02 - ANNOT.

When a contract for the sale of land and personalty is not divisible, the contract is entirely void if this section is not satisfied. Spensley Feed v. Livingston Feed, 128 Wis. 2d 279, 381 N.W.2d 601 (Ct. App. 1985).

706.02 - ANNOT.

The homestead signature requirement of sub. (1) (f) must be waived affirmatively by actual signing of the mortgage. A failure to plead the statute of frauds as an affirmative defense did not constitute a waiver. Weber v. Weber, 176 Wis. 2d 1085, 501 N.W.2d 413 (1993).

706.02 - ANNOT.

A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 Wis. 2d 426, 555 N.W.2d 655 (Ct. App. 1996), 95-1850.

706.02 - ANNOT.

An in-court oral stipulation could create a mortgage interest in property, but a homestead conveyance must bear the conveyor's signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under s. 815.20. Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210, 238 Wis. 2d 708, 618 N.W.2d 262, 99-2639.

706.02 - ANNOT.

If the language within the four corners of a deed is unambiguous, the court need look no further for the parties' intent. Eckendorf v. Austin, 2000 WI App 219, 239 Wis. 2d 69, 619 N.W.2d 129, 00-0713.

706.02 - ANNOT.

Spouses may affirmatively waive the homestead protection in sub. (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis. 2d 158, 646 N.W.2d 280, 01-1025.

706.02 - ANNOT.

A conveyance that "identifies the land" as required by sub. (1) means the conveyance must identify the property with "reasonable certainty." "Reasonable certainty" means that by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. It does not, however, necessarily require a legal description. Anderson v. Quinn, 2007 WI App 260, 306 Wis. 2d 686, 743 N.W.2d 492, 06-2462.

706.02 - ANNOT.

The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger, 82 F.3d 140 (1996).

State Codes and Statutes

Statutes > Wisconsin > 706 > 706.02

706.02

706.02 Formal requisites.

706.02(1)

(1) Transactions under s. 706.001 (1) shall not be valid unless evidenced by a conveyance that satisfies all of the following:

706.02(1)(a)

(a) Identifies the parties; and

706.02(1)(b)

(b) Identifies the land; and

706.02(1)(c)

(c) Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and

706.02(1)(d)

(d) Is signed by or on behalf of each of the grantors; and

706.02(1)(e)

(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and

706.02(1)(f)

(f) Is signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01 (7) except conveyances between spouses, but on a purchase money mortgage pledging that property as security only the purchaser need sign the mortgage; and

706.02(1)(g)

(g) Is delivered. Except under s. 706.09, a conveyance delivered upon a parol limitation or condition shall be subject thereto only if the issue arises in an action or proceeding commenced within 5 years following the date of such conditional delivery; however, when death or survival of a grantor is made such a limiting or conditioning circumstance, the conveyance shall be subject thereto only if the issue arises in an action or proceeding commenced within such 5-year period and commenced prior to such death.

706.02(2)

(2) A conveyance may satisfy any of the foregoing requirements of this section:

706.02(2)(a)

(a) By specific reference, in a writing signed as required, to extrinsic writings in existence when the conveyance is executed; or

706.02(2)(b)

(b) By physical annexation of several writings to one another, with the mutual consent of the parties; or

706.02(2)(c)

(c) By several writings which show expressly on their faces that they refer to the same transaction, and which the parties have mutually acknowledged by conduct or agreement as evidences of the transaction.

706.02 - ANNOT.

History: 1971 c. 211 s. 126; 1977 c. 177; 1999 a. 85.

706.02 - ANNOT.

There can be no waiver of the necessity of a spouse's joining in a deed of a homestead and no finding of agency will sustain the deed. Wangen v. Leum, 46 Wis. 2d 60, 174 N.W.2d 266 (1970).

706.02 - ANNOT.

In pleading a contract that is subject to the statute of frauds, it is not necessary to allege facts to establish that the contract complies with the statute or is within its exceptions. Ritterbusch v. Ritterbusch, 50 Wis. 2d 633, 184 N.W.2d 865 (1971).

706.02 - ANNOT.

An option to purchase land must be in writing and cannot be modified orally, but a seller may orally agree to accept payment in full rather than in installments. Kubnick v. Bohne, 56 Wis. 2d 527, 202 N.W.2d 400 (1972).

706.02 - ANNOT.

The test of undue influence to set aside a will is also applicable in order to void an inter vivos transfer due to undue influence. Ward v. Ward, 62 Wis. 2d 543, 215 N.W.2d 3 (1976).

706.02 - ANNOT.

Standing alone, an added provision in a 30-day option agreement to purchase real estate did not comply with the statute of frauds. Edlebeck v. Barnes, 63 Wis. 2d 240, 216 N.W.2d 551 (1974).

706.02 - ANNOT.

An oral contract for the conveyance of an interest in land is void unless there is a memorandum that conforms to the statute of frauds. Trimble v. Wis. Builders, Inc. 72 Wis. 2d 435, 241 N.W.2d 409 (1976).

706.02 - ANNOT.

When a contract for the sale of land with an indefinite description is taken out of the statute of frauds by part performance, extrinsic evidence admissible but for the statute of frauds may be introduced to provide the description. Clay v. Bradley, 74 Wis. 2d 153, 246 N.W.2d 142 (1976).

706.02 - ANNOT.

The question under sub. (1) (b) of whether property boundaries are identified to a reasonable certainty is for the jury to determine with the aid of all competent extrinsic evidence. Zapuchlak v. Hucal, 82 Wis. 2d 184, 262 N.W.2d 514 (1978).

706.02 - ANNOT.

The homestead defense under s. 706.02 (1) (f) is not defeated by s. 706.04, but a tort claim may exist against a signing spouse who misrepresents the non-signing spouse's acquiescence. Glinski v. Sheldon, 88 Wis. 2d 509, 276 N.W.2d 815 (1979).

706.02 - ANNOT.

The defense of the statute of frauds is waived if not raised in the trial court. Hine v. Vilter, 88 Wis. 2d 645, 277 N.W.2d 772 (1979).

706.02 - ANNOT.

A mortgage fraudulently executed by the use of a forged signature of one grantor was wholly void. State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 286 N.W.2d 547 (1980).

706.02 - ANNOT.

When a contract for the sale of land and personalty is not divisible, the contract is entirely void if this section is not satisfied. Spensley Feed v. Livingston Feed, 128 Wis. 2d 279, 381 N.W.2d 601 (Ct. App. 1985).

706.02 - ANNOT.

The homestead signature requirement of sub. (1) (f) must be waived affirmatively by actual signing of the mortgage. A failure to plead the statute of frauds as an affirmative defense did not constitute a waiver. Weber v. Weber, 176 Wis. 2d 1085, 501 N.W.2d 413 (1993).

706.02 - ANNOT.

A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 Wis. 2d 426, 555 N.W.2d 655 (Ct. App. 1996), 95-1850.

706.02 - ANNOT.

An in-court oral stipulation could create a mortgage interest in property, but a homestead conveyance must bear the conveyor's signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under s. 815.20. Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210, 238 Wis. 2d 708, 618 N.W.2d 262, 99-2639.

706.02 - ANNOT.

If the language within the four corners of a deed is unambiguous, the court need look no further for the parties' intent. Eckendorf v. Austin, 2000 WI App 219, 239 Wis. 2d 69, 619 N.W.2d 129, 00-0713.

706.02 - ANNOT.

Spouses may affirmatively waive the homestead protection in sub. (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis. 2d 158, 646 N.W.2d 280, 01-1025.

706.02 - ANNOT.

A conveyance that "identifies the land" as required by sub. (1) means the conveyance must identify the property with "reasonable certainty." "Reasonable certainty" means that by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. It does not, however, necessarily require a legal description. Anderson v. Quinn, 2007 WI App 260, 306 Wis. 2d 686, 743 N.W.2d 492, 06-2462.

706.02 - ANNOT.

The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger, 82 F.3d 140 (1996).

State Codes and Statutes

State Codes and Statutes

Statutes > Wisconsin > 706 > 706.02

706.02

706.02 Formal requisites.

706.02(1)

(1) Transactions under s. 706.001 (1) shall not be valid unless evidenced by a conveyance that satisfies all of the following:

706.02(1)(a)

(a) Identifies the parties; and

706.02(1)(b)

(b) Identifies the land; and

706.02(1)(c)

(c) Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and

706.02(1)(d)

(d) Is signed by or on behalf of each of the grantors; and

706.02(1)(e)

(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and

706.02(1)(f)

(f) Is signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01 (7) except conveyances between spouses, but on a purchase money mortgage pledging that property as security only the purchaser need sign the mortgage; and

706.02(1)(g)

(g) Is delivered. Except under s. 706.09, a conveyance delivered upon a parol limitation or condition shall be subject thereto only if the issue arises in an action or proceeding commenced within 5 years following the date of such conditional delivery; however, when death or survival of a grantor is made such a limiting or conditioning circumstance, the conveyance shall be subject thereto only if the issue arises in an action or proceeding commenced within such 5-year period and commenced prior to such death.

706.02(2)

(2) A conveyance may satisfy any of the foregoing requirements of this section:

706.02(2)(a)

(a) By specific reference, in a writing signed as required, to extrinsic writings in existence when the conveyance is executed; or

706.02(2)(b)

(b) By physical annexation of several writings to one another, with the mutual consent of the parties; or

706.02(2)(c)

(c) By several writings which show expressly on their faces that they refer to the same transaction, and which the parties have mutually acknowledged by conduct or agreement as evidences of the transaction.

706.02 - ANNOT.

History: 1971 c. 211 s. 126; 1977 c. 177; 1999 a. 85.

706.02 - ANNOT.

There can be no waiver of the necessity of a spouse's joining in a deed of a homestead and no finding of agency will sustain the deed. Wangen v. Leum, 46 Wis. 2d 60, 174 N.W.2d 266 (1970).

706.02 - ANNOT.

In pleading a contract that is subject to the statute of frauds, it is not necessary to allege facts to establish that the contract complies with the statute or is within its exceptions. Ritterbusch v. Ritterbusch, 50 Wis. 2d 633, 184 N.W.2d 865 (1971).

706.02 - ANNOT.

An option to purchase land must be in writing and cannot be modified orally, but a seller may orally agree to accept payment in full rather than in installments. Kubnick v. Bohne, 56 Wis. 2d 527, 202 N.W.2d 400 (1972).

706.02 - ANNOT.

The test of undue influence to set aside a will is also applicable in order to void an inter vivos transfer due to undue influence. Ward v. Ward, 62 Wis. 2d 543, 215 N.W.2d 3 (1976).

706.02 - ANNOT.

Standing alone, an added provision in a 30-day option agreement to purchase real estate did not comply with the statute of frauds. Edlebeck v. Barnes, 63 Wis. 2d 240, 216 N.W.2d 551 (1974).

706.02 - ANNOT.

An oral contract for the conveyance of an interest in land is void unless there is a memorandum that conforms to the statute of frauds. Trimble v. Wis. Builders, Inc. 72 Wis. 2d 435, 241 N.W.2d 409 (1976).

706.02 - ANNOT.

When a contract for the sale of land with an indefinite description is taken out of the statute of frauds by part performance, extrinsic evidence admissible but for the statute of frauds may be introduced to provide the description. Clay v. Bradley, 74 Wis. 2d 153, 246 N.W.2d 142 (1976).

706.02 - ANNOT.

The question under sub. (1) (b) of whether property boundaries are identified to a reasonable certainty is for the jury to determine with the aid of all competent extrinsic evidence. Zapuchlak v. Hucal, 82 Wis. 2d 184, 262 N.W.2d 514 (1978).

706.02 - ANNOT.

The homestead defense under s. 706.02 (1) (f) is not defeated by s. 706.04, but a tort claim may exist against a signing spouse who misrepresents the non-signing spouse's acquiescence. Glinski v. Sheldon, 88 Wis. 2d 509, 276 N.W.2d 815 (1979).

706.02 - ANNOT.

The defense of the statute of frauds is waived if not raised in the trial court. Hine v. Vilter, 88 Wis. 2d 645, 277 N.W.2d 772 (1979).

706.02 - ANNOT.

A mortgage fraudulently executed by the use of a forged signature of one grantor was wholly void. State Bank of Drummond v. Christophersen, 93 Wis. 2d 148, 286 N.W.2d 547 (1980).

706.02 - ANNOT.

When a contract for the sale of land and personalty is not divisible, the contract is entirely void if this section is not satisfied. Spensley Feed v. Livingston Feed, 128 Wis. 2d 279, 381 N.W.2d 601 (Ct. App. 1985).

706.02 - ANNOT.

The homestead signature requirement of sub. (1) (f) must be waived affirmatively by actual signing of the mortgage. A failure to plead the statute of frauds as an affirmative defense did not constitute a waiver. Weber v. Weber, 176 Wis. 2d 1085, 501 N.W.2d 413 (1993).

706.02 - ANNOT.

A quitclaim deed of a married couple's homestead from one spouse to the other is not valid to alienate the grantor's interest in the property in any way that would eliminate either spouse's contractual obligations under a mortgage containing a valid dragnet clause. Schmidt v. Waukesha State Bank, 204 Wis. 2d 426, 555 N.W.2d 655 (Ct. App. 1996), 95-1850.

706.02 - ANNOT.

An in-court oral stipulation could create a mortgage interest in property, but a homestead conveyance must bear the conveyor's signatures. Because the stipulation lacked signatures, it was not a mortgage that could defeat the homestead exemption under s. 815.20. Equitable Bank, S.S.B. v. Chabron, 2000 WI App 210, 238 Wis. 2d 708, 618 N.W.2d 262, 99-2639.

706.02 - ANNOT.

If the language within the four corners of a deed is unambiguous, the court need look no further for the parties' intent. Eckendorf v. Austin, 2000 WI App 219, 239 Wis. 2d 69, 619 N.W.2d 129, 00-0713.

706.02 - ANNOT.

Spouses may affirmatively waive the homestead protection in sub. (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis. 2d 158, 646 N.W.2d 280, 01-1025.

706.02 - ANNOT.

A conveyance that "identifies the land" as required by sub. (1) means the conveyance must identify the property with "reasonable certainty." "Reasonable certainty" means that by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. It does not, however, necessarily require a legal description. Anderson v. Quinn, 2007 WI App 260, 306 Wis. 2d 686, 743 N.W.2d 492, 06-2462.

706.02 - ANNOT.

The statute of frauds does not bar a tort action for intentional misrepresentation. Winger v. Winger, 82 F.3d 140 (1996).

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