Appeal from a judgment of the Dane County Circuit Court, William D. Byrne, Judge. On certification from Court of Appeals.
Steinmetz, J. Heffernan, J., took no part.
The opinion of the court was delivered by: Steinmetz
This case involves the interpretation of sec. 893.15, Stats. (1977) *fn1 (now sec. 893.33), commonly referred to as the thirty-year statute. Specifically, we are being asked to interpret the public entity exception to the statute. That exception states "nor does this section apply to any real estate or interest therein while the record title thereto remains in the state or any political subdivision or municipal corporation thereof." *fn2
The facts of this case are not disputed by the parties. On March 16, 1918, the trustee under the will of George B. Burrows conveyed a parcel of real estate 250 feet by 300 feet to the Joint School District No. 1 of the Towns of Madison and Burke. The deed contained a reversionary clause, which provided:
"It is part of the consideration for the sale and conveyance of said premises, that the premises shall be used solely for school purposes and other matters usually incident thereto, and for no other purposes whatever, and that in the event of the use of said premises for any other than for the purposes aforesaid, the said party of the first part shall be at liberty to return to said party of the second part the purchase money for said premises, but without interest thereon, and upon such return to have and to receive from the party of the second part, its successors or assigns, a re-conveyance to him, his successors or assigns of the premises hereinbefore described, and that thereupon the conveyance by the said party of the first part to the said party of the second part shall be cancelled and held for naught."
The deed was properly recorded on July 1, 1922.
On June 22, 1922, final judgment was entered in the trust estate which assigned the trust property to the State Historical Society of Wisconsin. The final judgment described, in the form of a recital, numerous items of personal property and many parcels of real estate comprising the trust estate. It did not specifically list the reversionary right mentioned in the 1918 deed, but did assign to the State Historical Society "all the rest and residue of said trust estate, of whatever nature or kind or wherever situated in the possession or control of said trustee . . . ." The final judgment was recorded on January 17, 1923.
On July 1, 1962, Joint School District No. 1 was taken over by the Madison City School District. Title to the property was held by the city of Madison. On April 24, 1978, the Madison City School District, by then known as the Madison Metropolitan School District, declared the property "surplus." On June 7, 1979, following various meetings and letters, the State Historical Society tendered $3,800 to the Madison Metropolitan School District and demanded conveyance of the property to the State Historical Society. The demand was refused.
On July 27, 1979, the Village of Maple Bluff entered into a contract with the Madison Metropolitan School District to purchase the property and the adjoining real estate for $164,900, and on December 11, 1979, the purchase was completed. On December 12, 1979, a deed from the city of Madison to the defendant village of Maple Bluff was recorded and the village's purchase money mortgage to the defendant First Wisconsin National Bank of Madison was recorded. No instrument or notice referring to the existence of the claim of the State Historical Society has appeared on record subsequent to the recording of the original deed in 1922. On January 24, 1980, the plaintiff State Historical Society commenced this action seeking a declaration of its rights in the real estate in question. On July 29, 1980, the defendants filed a motion for summary judgment which contended in part that the plaintiffs were barred from asserting their claim under the 1918 deed because of the provisions of sec. 893.15, Stats. (1977).
The trial court ruled that the real estate in question was not subject to the provisions of sec. 893.15, Stats. (1977), because record title to the real estate was in a municipal corporation, hence the real estate was excepted from the statute. This court accepted the defendants' appeal on certification from the court of appeals.
The sole issue for determination in this appeal is whether the defendant can use the provisions of sec. 893.15, Stats. (1977) to bar the plaintiffs' claim to real estate under the 1918 deed. To phrase it another way, the issue is whether the exception listed in sec. 893.15(4) for real estate owned by public entities is intended only as a protection for the public entity by allowing it to bring claims which are older than thirty years; or whether the exception for real estate owned by public entities also bars the public entities from raising the statute as a defense against claims of others which are older than thirty years.
It is important to state the issues we are not concerned with on this appeal. First, we are not dealing with the question of whether the State Historical Society itself is an excepted public entity under sec. 893.15(4), Stats. (1977). The trial court did not consider that issue and the parties have removed it from appeal by stipulation. Second, we are not concerned with the question of whether the plaintiffs are the owners of the reversionary interest under the Burrow's will. The trial court did not decide this issue, and the parties have also removed this issue from the appeal by stipulation. With these questions removed, we only need to discuss the issue of whether the public entity exception bars the defendants from arguing that the plaintiffs' claim is older than thirty years.
Sec. 893.15, Stats. (1977) is in the nature of a statute of limitations which bars actions affecting title to real estate which are based on instruments executed or recorded more than thirty years prior to the commencement of the action. The statute's purpose was to protect purchasers from stale claims and make record title more marketable. State v. Barkdoll, 99 Wis. 2d 163, 173, 298 N.W.2d 539 (1980). Herzog v. Bujniewicz, 32 Wis. 2d 26, 32, 145 N.W.2d 124 (1966). It was designed "to simplify and shorten examinations of record titles and otherwise reduce the legal costs incident to the sale of real estate." Tulane, Title to Real Property -- Thirty Year Limitation Statute, 1942 Wis. L. Rev. 258, 259. See also Notes and Comments, Conveyances -- Section 330.15 -- The "Thirty-Year" Statute, 1947 Wis. L. Rev. 681.
The thirty-year statute was created by ch. 293, Laws of 1941 and first appeared as sec. 330.15, Stats. (1941). When initially enacted the statute contained only one exception -- the "owner in possession" exception. In 1943, the statute was amended and excepted real estate where record title was in railroad corporations or public service corporations. Another portion of the amendment also excepted real estate where record title was in a ...