Prince Corporation v. James N. Vandenberg

2016 WI 49

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2097, 2014AP2295
COMPLETE TITLE: Prince Corporation,
Plaintiff-Intervenor-Respondent,
v.
James N. Vandenberg,
Defendant,
Van De Hey Real Estate, LLC,
Garnishee-Defendant-Cross
Claimant-Respondent,
Sharon Kempen, Sandra Schmit and Mark
Vandenberg,
Intervenors-Cross-Claim
Defendants-Third-Party
Plaintiffs-Appellants-Petitioners,
v.
BMO Harris Bank (f/k/a M&I Marshall & Isley)
and State of
Wisconsin,
Third-Party Defendants,
Wisconsin Department of Revenue,
Third-Party Defendant-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEAL
(Reported at 364 Wis. 2d 599, 868 N.W.2d 599)
(Ct. App. 2015 – Published)
PDC No: 2015 WI App. 55

OPINION FILED: June 23, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 25, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Marc A. Hammer

JUSTICES:
CONCURRED:
CONCURRED/DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. concur
and dissent (Opinion filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the intervenors-cross-claim defendants-third-party
plaintiffs-appellants-petitioners, there were briefs by George
Burnett and the Law Firm of Conway, Olejniczak & Jerry, S.C.,
Green Bay. Oral argument by George Burnett.

For the third-party defendant-respondent, the cause was
argued by S. Michael Murphy, assistant attorney general, with
whom on the brief was Brad D. Schimel, attorney general.

2
 2016 WI 49
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2014AP2097 & 2014AP2295
(L.C. No. 2010CV297)

STATE OF WISCONSIN : IN SUPREME COURT

Prince Corporation,

Plaintiff-Intervenor-Respondent,

v.

James N. Vandenberg,

Defendant,

Van De Hey Real Estate, LLC,

Garnishee-Defendant-Cross
Claimant-Respondent, FILED
Sharon Kempen, Sandra Schmit and Mark JUN 23, 2016
Vandenberg,
Diane M. Fremgen
Intervenors-Cross-Claim Clerk of Supreme Court
Defendants-Third-Party
Plaintiffs-Appellants-Petitioners,

v.

BMO Harris Bank (f/k/a M&I Marshall & Ilsley)
and State of Wisconsin,

Third-Party Defendants,

Wisconsin Department of Revenue,

Third-Party Defendant-Respondent.
 Nos. 2014AP2097 & 2014AP2295

REVIEW of a decision of the Court of Appeals. Reversed in

part, affirmed in part and remanded.1

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a

published decision of the court of appeals,2 which affirmed the

circuit court's3 order entitling the Department of Revenue (DOR)

to garnish land contract proceeds due to James N. Vandenberg

(James) and three other tenants-in-common of real property,

Sharon Kempen, Sandra Schmidt and Mark Vandenberg (collectively,

the intervenors), and denying the intervenors' request to

partition the real estate that is subject to the land contract.

¶2 Our review centers on three issues: (1) whether the

DOR is entitled to garnish any portion of the final land

1
On January 25, 2016, oral arguments were held in this
matter. On May 20, 2016, we received a letter from the parties
advising the court that the parties had resolved their dispute
through settlement and intended to move for voluntary dismissal.
The letter requested that we "hold any opinion in this matter in
abeyance pending circulation of final settlement documentation."
We granted this petition for review in light of its presentation
of issues of statewide concern and, accordingly, we issue our
decision herein notwithstanding the parties' asserted resolution
of their dispute. See Wis. S. Ct. IOP II.L.4. ("[I]f a notice
of voluntary dismissal is filed after all of the briefs in the
proceeding are filed, the chief justice shall bring the notice
to the court for action."); State ex rel. Richards v. Foust, 165
Wis. 2d 429, 440a, 480 N.W.2d 444 (1992) (per curiam) (declining
to issue voluntary dismissal pursuant to IOP II.L.4 after "all
briefs were filed and the matter was decided by the court and
assigned to a justice to write the court's opinion").
2
Prince Corp. v. Vandenberg, 2015 WI App 55, 364 Wis. 2d
457, 868 N.W.2d 599.
3
The Honorable Marc A. Hammer of Brown County presided.

2
 Nos. 2014AP2097 & 2014AP2295

contract payment; and, if so, (2) whether the DOR is entitled to

garnish 1/4 of the final payment due on the land contract or 1/4

of the land contract's full purchase price; and (3) whether the

circuit court erroneously exercised its discretion in refusing

to partition the property.

¶3 We conclude that the DOR is entitled to garnish a

portion of the final land contract payment, and the portion

subject to garnishment is limited to the amount that James could

require be paid to him from that payment. We remand to the

circuit court to make the factual determination of the amount

that James has a right to receive from the final payment.

¶4 Finally, we conclude that the circuit court did not

erroneously exercise its discretion by refusing to partition the

property. Accordingly, we reverse the court of appeals in part,

affirm in part and remand.

I. BACKGROUND

¶5 In 1997, James, Sharon Kempen, Sandra Schmidt and Mark

Vandenberg acquired real estate located in Brown County as
tenants-in-common, with each individual having an undivided 1/4

ownership interest. During the time that they owned the

property, James accumulated personal debts that resulted in

encumbrances being filed against the property.

¶6 For example, on February 16, 2004, James gave a

mortgage to M&I Marshall & Ilsley Bank for a $54,100

3
 Nos. 2014AP2097 & 2014AP2295

indebtedness.4 On January 4, 2010, DOR docketed two tax warrants

totaling $112,655.24 for taxes that James owed. And on May 6,

2010, Prince Corporation (Prince) obtained a money judgment

against James for $165,000. The judgment was docketed in Brown

County on May 6, 2010. Finally, on June 3, 2010, the State of

Wisconsin docketed a judgment against James for $100,000 in

Brown County.

¶7 On July 14, 2011, James and the intervenors contracted

to sell their property to Van De Hey Real Estate, LLC

(Van De Hey) on land contract for $341,700.5 The land contract

provided that Van De Hey would remit payments in the following

manner: $113,900 at the execution of the contract on July 14,

2011; $113,900 on October 1, 2011; and the remaining $113,900 on

April 15, 2012. The land contract also provided that James and

the intervenors were obligated to deliver a warranty deed to the

property, "free and clear of all liens and encumbrances" when

the final payment was made.

¶8 Van De Hey timely made the first two payments as
required by the land contract.6 On February 17, 2012, Prince

4
BMO Harris Bank may claim a successor's interest in this
mortgage.
5
At the time of the land contract purchase, the sellers and
the buyer knew that there were numerous encumbrances against the
real estate as indicated by the title insurance policy.
6
The parties agreed to indefinitely extend the time for
Van De Hey's final payment, pending resolution of the issues
before us.

4
 Nos. 2014AP2097 & 2014AP2295

filed a non-earnings garnishment summons and complaint, seeking

to garnish Van De Hey's final payment of $113,900 as partial

satisfaction of its judgment against James. The intervenors

moved to intervene in Prince's garnishment action, and the

circuit court granted their motion on June 6, 2012. The

intervenors argued that the DOR had an interest superior to

Prince's interest. They also argued that garnishment was

limited to James's 1/4 share of the final $113,900 payment,

which was $28,475. However, on November 6, 2012, the circuit

court issued an order entitling Prince to garnish 1/4 of the

full contract price, or $85,425. Van De Hey did not make the

final payment.

¶9 On November 14, 2013, the intervenors filed a third-

party summons and complaint, impleading the DOR as an interested

party due to its earlier filed tax warrants that resulted from

James's delinquent taxes.7 They attached as exhibits to their

third-party complaint copies of Prince's non-earnings

garnishment complaint and the land contract for the sale of the
property.

¶10 On December 20, 2013, the DOR answered the third-party

complaint, admitting that it claimed an interest in the property

because it docketed state income tax warrants against James for

7
The intervenors' third-party complaint sought to implead
BMO Harris Bank, the successor in interest of M&I Marshall &
Ilsley Bank. BMO Harris Bank has not participated in this
review.

5
 Nos. 2014AP2097 & 2014AP2295

$64,719.47 and $47,935.77 on January 4, 2010.8 The DOR's answer

further stated that "judgment is requested in accordance with

the foregoing, together with such other and further relief as is

just and equitable."

¶11 On April 9, 2014, the intervenors moved for partition

as well as reconsideration of the circuit court's November 6,

2012 order entitling Prince to garnish $85,425 from Van De Hey's

final land contract payment. The intervenors argued that

Prince's garnishment action should be dismissed due to the DOR's

superior tax warrants and that garnishment by any party was

limited to James's 1/4 outstanding share of the final payment,

or $28,475. The intervenors also requested partition of the

property as the only method of conveying title to Van De Hey

"free and clear of all liens and encumbrances" as required by

the land contract.

¶12 On reconsideration, the circuit court concluded that

it would "maintain[] its previous holding that a valid

lienholder may garnish the entirety of [James's] interest in the
land sale——one-fourth of the total contract price[,] or

$85,425." However, the circuit court concluded that the DOR's

previously-docketed tax warrants were superior to Prince's money

8
The DOR docketed an additional tax warrant against James
on August 20, 2012 for $45,320.67. We also note that the record
contains some discrepancies regarding the exact amounts of the
tax warrants that were docketed on January 4, 2010. The title
insurance commitment indicates they were in the amounts of
$54,064.77 and $48,953.56. The exact amounts of those warrants
are not relevant to the issues that we address.

6
 Nos. 2014AP2097 & 2014AP2295

judgment. Therefore, the circuit court held that the DOR,

rather than Prince, was entitled to garnish $85,425 from

Van De Hey's final payment of $113,900.

¶13 With respect to the intervenors' request for

partition, the circuit court acknowledged that "[a]ny person

having an interest in real property" has the right to request

partition. However, the circuit court denied partition because

any such action would prejudice one or more persons with an

interest in the property. Both Prince and the intervenors

separately appealed the circuit court's order.

¶14 The court of appeals affirmed in all respects, holding

that (1) the DOR's answer to the third-party complaint was

sufficient to entitle it to garnish a portion of Van De Hey's

final payment; (2) the DOR was entitled to garnish 1/4 of the

full sale price of the land contract, $85,425; and (3) the

circuit court did not erroneously exercise its discretion in

denying partition. We granted the intervenors' petition for

review.9

9
Prince did not petition for review, and has not
participated before us. It is undisputed that the DOR's tax
warrants were docketed prior to Prince's money judgment.
Therefore, for purposes of our review, we assume, without
deciding, that the circuit court and court of appeals were
correct in holding that the DOR's tax warrants had priority over
Prince's money judgment in regard to garnishing James's
ownership interest in the final payment due under the land
contract.

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 Nos. 2014AP2097 & 2014AP2295

II. DISCUSSION

A. Standard of Review

¶15 Resolution of this dispute requires us to interpret

and apply Wisconsin garnishment statutes.10 Statutory

interpretation and application are questions of law that we

review independently, while benefitting from the analyses of the

circuit court and court of appeals. Richards v. Badger Mut.

Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581;

Milwaukee Stove & Furnace Supply Co. v. Apex Heating & Cooling,

Inc., 142 Wis. 2d 151, 155, 418 N.W.2d 4 (Ct. App. 1987)

(explaining that garnishment is a statutory remedy, requiring

independent appellate review).

¶16 Although the common law of partition is now codified,

it remains an equitable remedy. Klawitter v. Klawitter, 2001 WI

App 16, ¶7, 240 Wis. 2d 685, 623 N.W.2d 169. Therefore, we

review the circuit court's partition decision under the "highly

deferential" erroneous exercise of discretion standard, which we

apply to equitable remedies. Id., ¶8 (applying erroneous
exercise of discretion to circuit court's discretionary decision

in regard to contribution during partition action); Associated

Bank N.A. v. Collier, 2014 WI 62, ¶22, 355 Wis. 2d 343, 852

N.W.2d 443 (explaining that review of a circuit court's decision

10
Chapter 812, Subchapter I (2013-14). All further
references to the Wisconsin Statutes are to the 2013-14 version
unless otherwise indicated.

8
 Nos. 2014AP2097 & 2014AP2295

about whether to employ its equitable powers applies the

erroneous exercise of discretion standard).

B. General Principles of Statutory Interpretation

¶17 "[S]tatutory interpretation 'begins with the language

of the statute. If the meaning of the statute is plain, we

ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236

Wis. 2d 211, 612 N.W.2d 659). Plain meaning may be ascertained

not only from the words employed in the statute, but also from

the context. Id., ¶46. We interpret statutory language in the

context in which those words are used; "not in isolation but as

part of a whole; in relation to the language of surrounding or

closely-related statutes; and reasonably, to avoid absurd or

unreasonable results." Id.

¶18 "If the words chosen for the statute exhibit a 'plain,

clear statutory meaning,' without ambiguity, the statute is

applied according to the plain meaning of the statutory terms."
State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d

769 (quoting Kalal, 271 Wis. 2d 633, ¶46). However, where the

statute is "capable of being understood by reasonably well-

informed persons in two or more senses[,]" then the statute is

ambiguous. Kalal, 271 Wis. 2d 633, ¶47. Where the language is

ambiguous, we may consult extrinsic sources. Id., ¶50. "While

extrinsic sources are usually not consulted if the statutory

language bears a plain meaning, we nevertheless may consult
extrinsic sources 'to confirm or verify a plain-meaning

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 Nos. 2014AP2097 & 2014AP2295

interpretation.'" Grunke, 311 Wis. 2d 439, ¶22 (quoting Kalal,

271 Wis. 2d 633, ¶51).

C. Garnishment Principles

¶19 Garnishment is a remedy available to a creditor, the

garnishor, seeking satisfaction of its debtor's debts by

garnishing property of the debtor, the defendant, that is in the

hands of a third-party, the garnishee. See Mundt v. Shabow, 120

Wis. 303, 304, 97 N.W. 897 (1904); Wis. Stat. § 812.01.

Garnishment is a wholly statutory remedy, requiring strict

compliance. Liberty Loan Corp. & Affiliates v. Eis, 69 Wis. 2d

642, 646-47, 230 N.W.2d 617 (1975) (explaining that the

statutory prerequisites for garnishment are strictly enforced);

Milwaukee Stove, 142 Wis. 2d at 155 (stating that action for

garnishment will not lie absent statutory authority).

Therefore, "the right to commence a garnishment action must be

found within the provisions of the garnishment statute[s]."

Hometown Bank v. Acuity Ins., 2008 WI App 48, ¶8, 308 Wis. 2d

503, 748 N.W.2d 203.
¶20 Chapter 812, Subchapter I of the Wisconsin Statutes

governs non-earnings garnishment actions. Wisconsin Stat.

§ 812.01(1) provides that any "creditor may commence a

nonearnings garnishment [action] 'against any person who is

indebted to or has any property in his or her possession or

under his or her control belonging to such creditor's debtor.'"

Id. (quoting Wis. Stat. § 812.01(1)). Wisconsin Stat.

§ 812.04(3) states that "[a] garnishment action shall be

10
 Nos. 2014AP2097 & 2014AP2295

commenced by the filing of a garnishee summons and annexed

complaint."

¶21 Pursuant to the foregoing statutes, Prince, the

garnishor, commenced the instant garnishment action against

Van De Hey, the garnishee, having possession of land contract

proceeds due to James, the debtor, by virtue of Van De Hey's

obligation to make payments under the land contract. As

required by Wis. Stat. § 812.04(3), Prince filed a non-earnings

garnishment summons and complaint on February 17, 2012 and

timely served the appropriate parties; thereafter, the

garnishment action proceeded in circuit court.

¶22 Neither the intervenors nor Van De Hey has argued that

the garnishment action was not properly commenced by Prince.

Accordingly, we assume, without deciding, that Prince strictly

complied with Wis. Stat. § 812.04(3), thereby properly

commencing the instant garnishment action against James's right

to payment from Van De Hey.

1. Impleader into already-commenced garnishment action
¶23 Although it is undisputed that Prince properly

commenced the instant garnishment action, the intervenors argue

that the DOR is not entitled to garnish any portion of

Van De Hey's final payment because the DOR did not file a non-

earnings garnishment summons and complaint after being impleaded

into the garnishment action.

¶24 However, Wis. Stat. § 812.17 addresses impleading a

third-party into an already-commenced garnishment action where

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 Nos. 2014AP2097 & 2014AP2295

that third-party claims an interest in the property held by the

garnishee:

When the answer of the garnishee discloses that any
3rd person claims the debt or property in the
garnishee's hands[,] . . . the court may order that
such claimant be impleaded as a defendant in the
garnishment action . . . . Upon such service being
made[,] such claimant shall be deemed a defendant in
the garnishee action, and within 20 days shall answer
setting forth the claimant's claim or any defense that
the garnishee might have made.
Wis. Stat. § 812.17.
¶25 Initially, we note that Wis. Stat. § 812.17

contemplates impleader when it is the answer of the garnishee

that discloses a third-party's claim to the garnishable

property. In the instant case, it was not the answer of the

garnishee, Van De Hey, that disclosed the DOR's superior claim

to a portion of the final payment under the land contract.

Rather, upon learning of Prince's garnishment action against

Van De Hey, the intervenors moved to intervene and sought to

implead the DOR due to tax warrants docketed against the real

estate. Accordingly, the intervenors impleaded the DOR into the
already-commenced garnishment action by serving a third-party

summons and complaint, to which they attached Prince's original

non-earnings garnishment complaint.

¶26 Perhaps because they are the very parties who

impleaded the DOR, the intervenors do not argue to us that the

DOR is not a proper party to the already-commenced garnishment

action. Although the intervenors raised this argument to the
court of appeals, the court of appeals properly noted that the

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 Nos. 2014AP2097 & 2014AP2295

intervenors did not argue to the circuit court that impleader of

the DOR was improper under Wis. Stat. § 812.17. As the

intervenors do not raise the issue before us and did not raise

the issue to the circuit court, we will not consider it.

Shadley v. Lloyds of London, 2009 WI App 165, ¶25, 322 Wis. 2d

189, 776 N.W.2d 838 (stating that "[i]t is well-established law

in Wisconsin that those issues not presented to the trial court

will not be considered for the first time at the appellate

level." (citing State v. Gove, 148 Wis. 2d 936, 940-41, 437

N.W.2d 218 (1989); State v. Caban, 210 Wis. 2d 597, 604-05, 563

N.W.2d 501 (1997); Hopper v. City of Madison, 79 Wis. 2d 120,

137, 256 N.W.2d 139 (1977))).

¶27 Indeed, arguing that the DOR was not a proper party to

the garnishment action would have been contrary to the

intervenors having sought to implead the DOR in the first

instance. Therefore, we assume, without deciding, that the DOR

was properly impleaded as a party to the already-commenced

garnishment action under Wis. Stat. § 812.17. However, the
intervenors argue that the DOR is not entitled to garnishment

because it did not file a non-earnings garnishment summons and

complaint after being impleaded under Wis. Stat. § 812.17.

¶28 While a non-earnings garnishment summons and complaint

are required by Wis. Stat. § 812.04(3) in order to commence a

garnishment action, the plain language of Wis. Stat. § 812.17

does not require an impleaded third-party to file a summons and

complaint in an already-commenced garnishment action in order to
be entitled to garnish the property to which it claims an

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 Nos. 2014AP2097 & 2014AP2295

interest. We decline to impose a requirement that is plainly

not required by the statute. Harris v. Kelley, 70 Wis. 2d 242,

250, 234 N.W.2d 628 (1975) (declining to rewrite statute under

the guise of statutory interpretation). Rather, once a

garnishment action is commenced under Wis. Stat. § 812.04(3) and

the impleaded third-party files an answer setting forth its

claim to the property in the garnishee's hands, the impleaded

third-party begins its garnishment. Wis. Stat. § 812.17. As

aptly noted by the court of appeals, "[t]hat is precisely what

happened in this case." Prince Corp. v. Vandenberg, 2015 WI App

55, ¶37, 364 Wis. 2d 457, 868 N.W.2d 599.

¶29 Namely, the DOR answered the third-party complaint,

asserting its claim to James's ownership interest in the land

contract payment based on state income tax warrants for James's

delinquent taxes. Specifically, the DOR's answer stated that it

"claims an interest in the Property, by virtue of the following

delinquent state tax warrants which have been docketed . . .

against James N. Vandenberg." The DOR's answer identified two
warrants that were docketed on January 4, 2010.

¶30 We conclude that the DOR's answer sufficiently set

forth its claim to the garnishable property at issue in the

already-commenced garnishment action; namely, a portion of the

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 Nos. 2014AP2097 & 2014AP2295

final payment due under the land contract.11 Initially, it is

significant that the DOR filed its answer in response to the

third-party complaint, which incorporated by reference Prince's

original non-earnings garnishment complaint as well as the land

contract. Prince's non-earnings garnishment complaint clearly

indicates that Prince was seeking to garnish the final payment

due under the land contract.

¶31 Furthermore, in listing its state income tax warrants

in its answer, the DOR identified its interest in the final

payment pursuant to Wis. Stat. § 71.91(4), which provides that

unpaid state income taxes "shall be a perfected lien in favor of

the [DOR] upon all property and rights to property."12 This

includes both real and personal property. Wis. Stat.

§ 71.91(6)(a)3. Therefore, by virtue of docketing its state

income tax warrants, the DOR obtained a statutory, perfected

11
Wisconsin Stat. § 812.16(1) provides, "No trial shall be
had of the garnishment action until the plaintiff has judgment
in the principal action." No party has asserted that
§ 812.16(1) required the DOR to reduce its tax warrants to
judgments before it was eligible to garnish a portion of the
final land contract payment. Therefore, we assume, without
deciding, that § 812.16(1) does not apply under the
circumstances presented by this case.
12
However, "[t]he perfected lien does not give the [DOR]
priority over lienholders, mortgagees, purchasers for value,
judgment creditors, and pledges whose interests have been
recorded before the [DOR]'s lien is recorded." Wis. Stat.
71.91(4). It is undisputed that the DOR's tax warrants were
docketed prior to Prince's money judgment and, therefore, have
priority in regard to Prince. However, the tax warrants were
docketed after James gave a mortgage to M&I Bank on February 16,
2014.

15
 Nos. 2014AP2097 & 2014AP2295

lien on James's right to payment from Van De Hey. The DOR

requested judgment in the already-commenced garnishment action

in accordance with the priority of its tax warrants relative to

Prince's docketed money judgment. Accordingly, we conclude that

the DOR's answer sufficiently set forth its claim to James's

interest in a portion of Van De Hey's final land contract

payment.

¶32 Consequently, we conclude that the DOR is entitled to

garnish a portion of Van De Hey's final payment under Wis. Stat.

§ 812.17. Therefore, we must next determine the amount of the

final payment that is garnishable by the DOR.

2. DOR's garnishable amount

¶33 As set forth above, the court of appeals held that the

DOR was entitled to garnish 1/4 of the total land contract

purchase price from the final payment because James "has a

property right to one-fourth of the full contract price, or

$85,425." Prince, 364 Wis. 2d 457, ¶20. Accordingly, the

court of appeals allowed the DOR to garnish $85,425 from
Van De Hey's final payment of $113,900.

¶34 However, contrary to the court of appeals' conclusion,

a garnishor is entitled to garnish only the amount that the

debtor could require be paid to him from the property in the

hands of the garnishee when the garnishment is served. Collier,

355 Wis. 2d 343, ¶32; Morawetz v. Sun Ins. Office, 96 Wis. 175,

178, 71 N.W. 109 (1897) (explaining that the garnishor steps

into the shoes of the debtor and, therefore, has no better
rights to property in the hands of the garnishee than the debtor

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 Nos. 2014AP2097 & 2014AP2295

could assert). Wisconsin Stat. § 812.18 provides, as is

relevant to the garnishment of Van De Hey:

From the time of service upon the garnishee, the
garnishee shall be liable to the creditor for the
property then in the garnishee's possession or under
his or her control belonging to the debtor or in which
the debtor is interested to the extent of his or her
right or interest therein and for all the garnishee's
debts due or to become due to the debtor . . . .
(emphases added).

¶35 Moreover, well-established Wisconsin precedent

provides that a garnishment action does not give the garnishor

any greater rights in the property held by a third party than

the debtor himself or herself possessed on the date that the

garnishment action was served. Miracle Feeds, Inc. v. Attica

Dairy Farm, 129 Wis. 2d 377, 380-81, 385 N.W.2d 208 (Ct. App

1986). In Miracle Feeds, a garnishment action was brought

against Zim's Cheese for milk checks payable to the debtor,

Attica. Id. at 378-79. A bank, to which Attica also was

indebted, intervened in the action, asserting that Attica had

assigned its interest in the milk checks to the bank in exchange

for the bank making loans to Attica and, therefore, Attica had

no interest in the milk checks that could be garnished. Id. at

379-81.

¶36 The court of appeals agreed with the bank. Id. at

379. In explaining the nature of a garnishment action, the

court of appeals said, "[i]n effect, the garnishment was 'an

action by [Attica] in [Miracle's] name against the garnishee,
the purpose of which is to subrogate the plaintiff to the rights

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 Nos. 2014AP2097 & 2014AP2295

of the defendant against the garnishee.'" Id. at 380-81.

(quoting Commercial Inv. Trust, Inc. v. Wm. Frankfurth H. Co.,

179 Wis. 21, 24, 190 N.W. 1004 (1922)). Because "Miracle merely

stands in Attica's shoes," and because Attica had assigned its

rights to all milk sale proceeds to the bank long before

Miracle's garnishment, there was no property of the debtor

(Attica) to obtain from Zim's Cheese. Id. at 381. See also

Morawetz, 96 Wis. at 178 (explaining that garnishment creates an

"equitable levy" on the debtor's property that is in the hands

of the garnishee at the time that the garnishment action is

served).

¶37 As set forth above, Prince commenced the instant

garnishment action on February 17, 2012, at which time

Van De Hey already had made two of the payments due under the

land contract. The final payment had not been made and,

therefore, the final payment was the only property still in

Van De Hey's hands at the time that the garnishment action was

served. Therefore, given the foregoing principles, the DOR is
entitled to garnish only James's outstanding share of the final

payment under the land contract. Stated otherwise, if 1/4 of

each of the first two payments has been paid to James or on his

behalf, James is entitled to $28,475 of the final payment on the

land contract, and that is the amount available for the DOR to

18
 Nos. 2014AP2097 & 2014AP2295

garnish.13 Wis. Stat. § 812.18; Miracle Feeds, 129 Wis. 2d at

381.

¶38 It is undisputed that James and the intervenors, as

tenants-in-common, each held an undivided 1/4 interest in the

real estate and each held a 1/4 interest in the proceeds of the

land contract; i.e., at the inception of the land contract each

tenant-in-common was to have received $85,425 when the third

payment of $113,900 was made. Therefore, part of the $113,900

payment that Van De Hey is holding belongs to James and part

belongs to each of the intervenors as the remaining three

tenants-in-common.

¶39 Determining the amounts payable to each tenant-in-

common from the final payment due under the land contract

requires factual findings about the amounts that were paid to or

on behalf of James from the first two payments Van De Hey made.

The third-party complaint asserts that the first two payments

due to James were made to M&I Bank on James's behalf.

¶40 It is undisputed that, on February 16, 2004, M&I Bank
filed a mortgage against the undivided real estate that the

parties owned as tenants in common. The intervenors assert that

the mortgage was security for debt James incurred personally.

13
It is undisputed that upon Van De Hey's payment in full
of the purchase price, James and the intervenors are required to
provide a "Warranty Deed in fee simple of the property, free and
clear of all liens and encumbrances." Because of the
significant encumbrances that exceed the final land contract
payment, it is not possible to determine when James and the
intervenors will be entitled to final payment.

19
 Nos. 2014AP2097 & 2014AP2295

However, the parties who responded to the third-party complaint

asserted that they could not admit or deny whether James's

portions of the first two payments had been paid to M&I Bank and

whether the mortgage arose from debt that James personally

incurred.

¶41 If the assertions of the intervenors prove to be

factually correct, James is owed $28,475 from the final payment,

and it is only $28,475 that is subject to garnishment by the

DOR. See Miracle Feeds, 129 Wis. 2d at 380-81 (explaining that

garnishor is entitled to garnish only the amount of the debtor's

property in the hands of the garnishee when the garnishment

action is served).14 Because the amounts that were paid to

James, or on his behalf, from the first two payments have not

been conclusively established in the record presented to us, we

conclude that a remand to the circuit court is necessary for a

factual determination of those amounts.

¶42 We note that any other result would prejudice the

intervenors by allowing the DOR to garnish a portion of
Van De Hey's final payment that is not owed to James but,

rather, is owed to the intervenors as the remaining three

tenants-in-common. See Gray v. Rollo, 85 U.S. 629, 634 (1873)

14
The court of appeals detoured into Wis. Stat.
§ 700.21(1), and employed it in interpreting the land contract
"as a matter of law." Prince, 346 Wis. 2d 457, ¶20. We do not
employ § 700.21(1) because determining the amount that James
could require Van De Hey to pay to him is a question of fact,
not a question of law.

20
 Nos. 2014AP2097 & 2014AP2295

("If a debt is due to A. and B., how can any court compel the

appropriation of it to pay the indebtedness of A. to the common

debtor without committing injustice toward B.?"). In sum, we

conclude that the DOR is entitled to garnish only what James,

himself, could require be paid to him from Van De Hey's final

payment. Finally, we address the intervenors' request to

partition the property.

D. Partition

¶43 The intervenors seek to partition the real estate.

They assert that partition is the only way in which they will be

able to transfer title to Van De Hey "free and clear of all

liens and encumbrances" as required under the land contract.

The circuit court denied their request to partition the

property, as it found that partition would prejudice one or more

parties with some interest in the property.

¶44 "Wisconsin Stat. § 842.02 codifies the common law of

partition [for real property], but partition remains an

equitable action. Under [Wis. Stat. § 842.02], a party 'having
an interest in real property jointly or in common with others'

may sue for judgment partitioning that interest . . . ."

O'Connell v. O'Connell, 2005 WI App 51, ¶8, 279 Wis. 2d 406, 694

N.W.2d 429 (internal citations omitted) (quoting Wis. Stat.

§ 842.02(1)). Alternatively, where physical partition of the

property is impossible, "the [circuit] court may order the land

sold and the proceeds of that sale divided." Id. (citing Wis.

Stat. § 842.02(2)).

21
 Nos. 2014AP2097 & 2014AP2295

¶45 In Wisconsin, title to real estate may have two

components: legal title and equitable title. Steiner v. Wis.

Am. Mut. Ins. Co., 2005 WI 72, ¶23, 281 Wis. 2d 395, 697 N.W.2d

452. In the case now before us, the real estate was in the

process of being sold on land contract. In a land contract

sale, legal title to the real estate remains with the vendor

until a deed is given, but equitable title is transferred to the

vendee at the commencement of the land contract.15 Wonka v.

Cari, 2001 WI App 274, ¶13, 249 Wis. 2d 23, 637 N.W.2d 92. We

recognize that the vendor's interest in payments under a land

contract has been characterized as an interest in personal

property. Lunde v. Fischer, 22 Wis. 2d 637, 646, 126 N.W.2d 596

(1964) (in a decision pre-dating Wisconsin's enactment of

marital property, we concluded that a land contract was properly

included in vendor-husband's estate as personal property, even

though his wife also signed the land contract).

¶46 However, Wis. Stat. § 842.02(1) permits a person

"having an interest in real property" to sue for partition, and
Wis. Stat. § 840.01 defines an "interest in real property" very

broadly to include "an interest that was formerly designated

legal or equitable." Accordingly, the intervenors, holding

15
Equitable title gives the vendee "full rights of
ownership, including the ability to sell, lease or encumber the
real estate subject to the rights of the Vendor unless the
contract provides to the contrary." Steiner v. Wis. Am. Mut.
Ins. Co., 2005 WI 72, ¶23, 281 Wis. 2d 395, 697 N.W.2d 452
(internal quotation marks omitted).

22
 Nos. 2014AP2097 & 2014AP2295

legal title, are proper parties to institute an action to

partition the property.

¶47 Our review of the circuit court's partition decision

is limited to whether the circuit court erroneously exercised

its discretion by refusing to partition the real estate.

Klawitter, 240 Wis. 2d 685, ¶8. Under this "highly deferential"

standard of review, we must uphold the circuit court's

discretionary determination as long as the circuit court

"examined the relevant facts, applied a proper standard of law,

and, using a demonstrated rational process, reached a conclusion

that a reasonable judge could reach." Id. (internal quotation

marks omitted) (quoting Wynhoff v. Vogt, 2000 WI App 57, ¶13,

233 Wis. 2d 673, 608 N.W.2d 400); see also Associated Bank, 355

Wis. 2d 343, ¶22.

¶48 We agree with the court of appeals that the circuit

court did not erroneously exercise its discretion by refusing to

partition the property. First, we note that the circuit court

set forth the applicable law in its order. Specifically, the
circuit court stated:

While an action for partition is governed primarily by
statute, partition is also equitable in nature. There
is a strong presumption favoring actual partition of
the property at issue over judicial sale of the
property. However, a judicial sale may be appropriate
when actual partition would result in prejudice to the
owners.
(internal citations omitted).

¶49 After recognizing that its power to order partition is
equitable, the circuit court went on to recite relevant facts,

23
 Nos. 2014AP2097 & 2014AP2295

noting that "[t]his is not a simple partition case, because of

the number of individuals with interests in the property." The

circuit court identified James and the intervenors as the

"owners" and Van De Hey as the purchaser of the property, having

already made two payments under the land contract.16

Additionally, the circuit court noted the numerous encumbrances

on the property, and identified Prince, the DOR, the State of

Wisconsin, and BMO Harris Bank as having asserted interests in

the real estate.

¶50 After correctly reciting the facts relevant to the

dispute, the circuit court determined that neither physical

partition of the real estate nor judicial sale of the real

estate would be equitable under the circumstances because any

such action would have prejudicial effects on one or more

interested persons. Specifically, the circuit court concluded

that physical partition would be prejudicial to Van De Hey,

holding equitable title, because Van De Hey had contracted to

receive the entire property for the purchase price and had made
two payments in furtherance of the land contract. The circuit

16
Whether courts conclude that a vendor is an "owner" of
the property under consideration has depended on the statute
being interpreted because the term, "own," has been used "to
describe a great variety of interests, and may vary in
significance according to context and subject matter." City of
Milwaukee v. Greenberg, 163 Wis. 2d 28, 35, 471 N.W.2d 33 (1991)
(quoting Merrill Ry. & Lighting Co. v. Merrill, 119 Wis. 249,
254, 96 N.W. 686 (1903)). This concern is of less importance
here where "interest in real property" is so broadly defined for
purposes of partition.

24
 Nos. 2014AP2097 & 2014AP2295

court said that it was possible that partition could result in

Van De Hey receiving an unencumbered 3/4 of the property from

the intervenors and an encumbered 1/4 of the property from

James.17 However, Van De Hey contracted to purchase the entire

property "free and clear of all liens and encumbrances."

Partition also would result in reducing the security by 3/4 for

others who have encumbrances on the real estate if their

encumbrances were to remain on only James's 1/4 interest rather

than on the undivided interests in the property.18 Therefore,

the circuit court refused to order partition as inequitable.

17
As a tenant in common, James possesses an undivided
interest in the entire property. Nettesheim v. S.G. New Age
Prods., Inc., 2005 WI App 169, ¶10, 285 Wis. 2d 663, 702 N.W.2d
449 ("A tenancy in common is defined as a 'tenancy by two or
more persons, in equal or unequal undivided shares, each person
having an equal right to possess the whole property . . . .'"
(quoting Black's Law Dictionary 1507 (8th ed. 2004))).
Therefore, lienholders on James's interest likewise possess an
undivided interest in the entire property. However, Wis. Stat.
§ 842.14(3) provides:

If partition is adjudged, existing liens shall
not be affected or impaired, except that a lien upon
an undivided interest or estate shall thereafter be a
charge only on the share assigned to the party against
whom it exists, which share shall be charged with its
just proportion of the costs in preference to such
lien.

(emphases added). Consequently, partition would have the effect
of reducing by 3/4 the size of property to which the liens
attached if after partition only James's 1/4 interest were
affected rather than the liens affecting the whole property.
18
See supra n.16.

25
 Nos. 2014AP2097 & 2014AP2295

¶51 Next, the circuit court considered, but refused to

order, judicial sale of the property, concluding that it would

likewise be prejudicial to Van De Hey. The circuit court

properly noted that judicial sale occurs at public auction

pursuant to Wis. Stat. § 842.17. Again, as Van De Hey

contracted to purchase the entire property and made payments in

furtherance thereof, public auction of the property would not

result in Van De Hey receiving the benefit of its bargain.19

¶52 Additionally, the circuit court specifically noted and

considered its ability to fashion some other remedy such as

partitioning the real estate and ordering a private sale to

Van De Hey "free and clear of all liens and encumbrances." See

Schmit v. Klumpyan, 2003 WI App 107, ¶¶22, 26, 264 Wis. 2d 414,

663 N.W.2d 331 (explaining that the circuit court in a partition

action is not limited to the remedies set out in the statutes so

19
Wisconsin Stat. § 842.17(1) provides that "[i]f the court
finds that the land or any portion thereof is so situated that
partition cannot be made without prejudice to the owners, and
there are no tenants or lienholders, it may order the sheriff to
sell the premises so situated at public auction."

The property in the instant case is subject to numerous
encumbrances. Wisconsin Stat. § 842.17(2)-(3) guide circuit
courts in proceeding with judicial sale when there are
lienholders who do not agree to a sale. We note that the record
is devoid of any indication of whether Prince, BMO Harris, the
DOR or the State of Wisconsin would or would not consent to a
sale. Without this information, we cannot expect the circuit
court to have proceeded with judicial sale under Wis. Stat.
§ 842.17 in the face of the numerous lienholders' interests in
the property. Although the intervenors could have brought this
requisite information to the circuit court's attention, they
failed to do so.

26
 Nos. 2014AP2097 & 2014AP2295

long as the remedy chosen is equitable); Heyse v. Heyse, 47

Wis. 2d 27, 37, 176 N.W.2d 316 (1970) (authorizing circuit court

to order private sale if it considers such sale appropriate).

However, the circuit court stated that the intervenors had not

sufficiently explained how such a sale actually would occur.

¶53 Moreover, as properly noted by the circuit court,

among Prince, the DOR, State of Wisconsin, and BMO Harris Bank,

the property is encumbered by more than $400,000 of

indebtedness. Therefore, Van De Hey's entire purchase price for

the property, $341,700, is not enough to satisfy all of the

existing encumbrances. Therefore, we are not persuaded by the

intervenors' argument that partitioning or selling the property

would result in James and the intervenors being able to deliver

title "free and clear of all liens and encumbrances" as required

under the land contract.

¶54 Consequently, physical partitioning of the property,

or ordering it sold to Van De Hey "free and clear of all liens

and encumbrances," would affect all of the foregoing
encumbrances, resulting in prejudice to those interests. It is

not equitable to permit the intervenors to unilaterally

terminate the interests of lienholders, one of whom objected to

27
 Nos. 2014AP2097 & 2014AP2295

partition before us.20 Such a result would be contrary to the

protections afforded to lienholders in the partition statutes.

See, e.g., Wis. Stat. § 842.17.

¶55 Given the numerous interests noted by the circuit

court and the various consequences that any partitioning action

would have, we cannot conclude that no reasonable judge could

have denied partition under the facts herein presented. See

Heyse, 47 Wis. 2d at 37 (noting that partition statutes are

"permissive and within the discretion" of the circuit court to

order such remedies where appropriate). Accordingly, we

conclude that the circuit court demonstrated a rational

decision-making process in concluding that partition was not an

appropriate remedy after setting forth the relevant facts and

law. Therefore, we agree with the court of appeals' conclusion

that the circuit court did not erroneously exercise its

discretion by denying partition of the property based on the

record then before the circuit court.

III. CONCLUSION
¶56 In light of the foregoing, we conclude that the DOR is

entitled to garnish a portion of the final land contract

20
All lien holders have not participated before us, but DOR
has participated and objected to partition because of the effect
that it would have on its lien. DOR also asserted that it had
had no voice in the terms of sale to Van De Hey, which terms
could affect its interests. Again, we note that our review of
the circuit court's partition decision is limited to the record
before the circuit court, and we review it for an erroneous
exercise of discretion. Klawitter v. Klawitter, 2001 WI App 16,
¶8, 240 Wis. 2d 685, 623 N.W.2d 169.

28
 Nos. 2014AP2097 & 2014AP2295

payment, and the portion subject to garnishment is limited to

the amount that James could require be paid to him from that

payment. We remand to the circuit court to make the factual

determination of the amount that James has a right to receive

from the final payment.

¶57 Finally, we conclude that the circuit court did not

erroneously exercise its discretion by refusing to partition the

property. Accordingly, we reverse the court of appeals in part,

affirm in part and remand for further proceedings.

By the Court.—The decision of the court of appeals is

reversed in part, affirmed in part and remanded.

29
 No. 2014AP2097 & 2014AP2295.ssa

¶58 SHIRLEY S. ABRAHAMSON, J. (concurring in part and

dissenting in part). Counsel for Vandenberg's co-tenants in

common advised the court in a letter dated May 20, 2016, that

the parties reached a settlement in the instant case. The

letter asked that "the Court hold any opinion in this matter in

abeyance pending circulation of final settlement documentation,"

and advised that "[a] formal stipulation and order for dismissal

will be submitted to the Court in short order as soon as the

parties finalize the documentation necessary to effectuate this

settlement."

¶59 After the opinions in the instant case were scheduled

for release, on June 21, 2016, counsel for Vandenberg's co-

tenants in common submitted a "stipulation to dismiss appeal" to

the Clerk of the Wisconsin Supreme Court signed by counsel for

Vandenberg's co-tenants in common, the Wisconsin Department of

Revenue, and Prince Corporation.1 The cover letter and

stipulation are attached.

¶60 Other parties have appeared at various stages in the
instant case. For example, Van De Hey Real Estate, LLC, the

prospective buyer of the land at issue in the instant case, was

represented by counsel in the circuit court. Only Vandenberg's

co-tenants in common, the Department of Revenue, and Prince

Corporation, however, appeared in the court of appeals, and only

1
The justices received the stipulation on June 22, 2016.

1
 No. 2014AP2097 & 2014AP2295.ssa

the co-tenants in common and the Department of Revenue filed

briefs and argued before this court.

¶61 The intended effect of this stipulation is somewhat

unclear. The cover letter says there is a proposed order, but

no proposed order is attached. The cover letter says the

parties have fully resolved the matter and includes the case

numbers in both the circuit court and this court. The

stipulation, however, is captioned as a "stipulation to dismiss

appeal" and is signed only by the parties who have appeared in

the court of appeals and this court. Thus, the parties signing

the stipulation might wish only to dismiss this review, not the

underlying action in the circuit court.

¶62 Although the majority opinion acknowledges the receipt

of the May 20, 2016 letter, the majority opinion does not

acknowledge the receipt of the stipulation sent on June 21,

2016. Rather, the majority opinion explains that "we issue our

decision herein notwithstanding the parties' asserted resolution

of their dispute" because the issues raised in the instant case
are of statewide importance.2

¶63 I agree that these opinions should be released: The

issues raised are important; the issues raised are likely to

recur; the court unanimously agrees that the court of appeals

erred in deciding the garnishment issues presented; and the

justices disagree about partition.

2
Majority op., ¶1 n.1.

2
 No. 2014AP2097 & 2014AP2295.ssa

¶64 I disagree, however, with the decision to issue

opinions today. I would hold our opinions pending clarification

of whether remanding the cause to the circuit court remains the

appropriate course in light of the parties' "settlement."

¶65 Issuing the majority opinion in its present form risks

confusion over whether the fact finding the majority directs

still must take place on remand and whether the circuit court

may allow the parties to dismiss their action by stipulation

given the majority opinion's direction on the remand.3

¶66 I turn now to the merits. Although the majority

opinion correctly decides the garnishment issues presented, the

decision is an exercise in futility. The various claimed rights

and interests in the real property remain unresolved. The

majority opinion leaves the parties in legal and financial

limbo.

¶67 I dissent on the issue of partition. I would reverse

the decision of the court of appeals holding that the circuit

court did not err in refusing to order partition.4 Were it not
for the parties' possible settlement, I would remand the cause

to the circuit court to consider whether to order partition by

sale to Van De Hey or to consider any other equitable remedies

3
See Wis. Stat. § 805.04 (discussing voluntary dismissal).
For comments, see, e.g., Patricia Graczyk, The New Wisconsin
Rules of Civil Procedure Chapters 805-807, 59 Marq. L. Rev. 671,
677-78 (1976).
4
See Prince Corp. v. Vandenberg, 2015 WI App 55, ¶¶48-50,
364 Wis. 2d 457, 868 N.W.2d 599.

3
 No. 2014AP2097 & 2014AP2295.ssa

that may be appropriate. The court of appeals' decision (and

the circuit court's decision denying partition) erred in

concluding that ordering partition would result in prejudice

either to the buyer, Van De Hey, or to James Vandenberg's

creditors, who apparently hold liens worth more than $400,000

against James Vandenberg's share of the real property.

¶68 The third payment under the land contract is the

subject of the garnishment proceedings. Why, given the majority

opinion's conclusions, would Van De Hey pay Vandenberg and his

co-tenants in common the third installment due under the land

contract when it is obvious that, without additional actions

being taken, Vandenberg and the other tenants in common cannot

fulfill the terms of the land contract——that is, they cannot

provide Van De Hey title to the real property free and clear of

all encumbrances?

¶69 James Vandenberg, his co-tenants in common, and Van De

Hey ask for a fair opportunity to present their partition claim

to the circuit court in an effort to clear title. I would give
them that opportunity.5

5
For background on and discussions of partition, see, for
example, 7 Powell on Real Property § 50.07 (Michael Allan Wolf
ed., 2009); 4 Thompson on Real Property ch. 38 (David A. Thomas
ed., 3d ed. 2004); Clark D. Knapp, A Treatise on the Law of
Partition of Real and Personal Property (1887); John Norton
Pomeroy, A Treatise on Equity Jurisprudence §§ 1386-90 (Spencer
W. Symons ed., 5th ed. 1941); Annotation, Partition: Division of
Building, 28 A.L.R. 727 (current with weekly additions)
(collecting cases).

4
 No. 2014AP2097 & 2014AP2295.ssa

¶70 As the court of appeals recognized, the value of the

entire real property, let alone James Vandenberg's one-quarter

interest, is substantially less than the amount of the recorded

liens and encumbrances against James Vandenberg's one-quarter

interest.6

¶71 At the same time, Van De Hey has already paid $227,800

for the property in the first two payments on the land contract.

Some of that money apparently may have gone to satisfy a first

mortgage against James Vandenberg's one-quarter interest in the

property. If the sale cannot go forward because title cannot be

provided free and clear of all liens and encumbrances, then Van

De Hey likely will not make the third and final payment and will

try to recover its other payments.

¶72 Partition by sale seems to offer a way that the land

contract transaction can be completed and the lienholders fairly

compensated in order of priority, in a procedure akin to a

foreclosure. In the instant case, partition would be initiated

by the title holders. In foreclosure, the lienholders initiate
the procedure.

¶73 James Vandenberg, the intervenors (Vandenberg's co-

tenants in common), and the buyer, Van De Hey, seek partition by

sale. They argue that partition by sale would enable Van De Hey

to make the final payment under the land contract; would enable

James Vandenberg's one-quarter share of the proceeds of the

6
See Prince, 364 Wis. 2d 457, ¶51.

5
 No. 2014AP2097 & 2014AP2295.ssa

partition by sale to be distributed to his lienholders in order

of priority; would enable the liens on James Vandenberg's share

of the real property to be extinguished; would leave James

Vandenberg liable for debts to his creditors; and would allow

James Vandenberg and the co-tenants in common to provide title

to the real property to Van De Hey (or another buyer) free and

clear of all encumbrances.7

7
The Department of Revenue asserts that it would be
"extraordinary" for a circuit court to order partition and a
private sale, and that the circuit court's refusal to order this
"extraordinary" remedy is not an erroneous exercise of
discretion. Even if partition were an extraordinary remedy (and
it is not), that does not mean it is an inappropriate remedy in
the circumstances of the instant case.

The Department's proposal that the land contract vendors
who are not debtors obtain releases of the liens (echoed by the
court of appeals, see Prince, 364 Wis. 2d 457, ¶51) appears
impractical, especially when the liens and encumbrances are
apparently substantially more than the value of the property.

6
 No. 2014AP2097 & 2014AP2295.ssa

¶74 I conclude that the circuit court erroneously

exercised its discretion as a matter of law in denying partition

by sale.8

¶75 The court of appeals affirmed the circuit court's

denial of partition, concluding that partition would prejudice

both Van De Hey and the lienholders.9 The court of appeals erred

as a matter of law in failing to recognize that in the partition

8
The majority opinion (¶16) asserts that our review of the
circuit court's partition decision is "highly deferential,"
citing Associated Bank N.A. v. Collier, 2014 WI 62, ¶22, 355
Wis. 2d 343, 852 N.W.2d 443 and Klawitter v. Klawitter, 2001 WI
App 16, ¶8, 240 Wis. 2d 685, 623 N.W.2d 169. Associated Bank
does not use the phrase "highly deferential," but Klawitter
does. Although Klawitter states that our review of equitable
determinations is "highly deferential," the case it cites for
the standard of review, Tralmer Sales & Service, Inc. v.
Erickson, 186 Wis. 2d 549, 572, 521 N.W.2d 182 (Ct. App. 1994),
states (with emphasis added) that "[o]ur review of a trial
court's discretionary decision is highly deferential," but
provides no citation at all for the "highly deferential"
language. I conclude that our standard for reviewing an
equitable determination like partition is no more or less
deferential than our usual review of other exercises of
discretion.
9
Prince, 364 Wis. 2d 457, ¶¶48-50. Van De Hey asked the
circuit court to order partition. It did not think it would be
prejudiced.

The majority opinion also concludes that partition would
prejudice "one or more interested persons," including James
Vandenberg's various creditors. See majority op., ¶¶50-52. The
Wisconsin partition statutes focus on prejudice "to the
owners . . . ." See, e.g., Wis. Stat. §§ 842.10, 842.11,
842.17(1). Thus it is unclear under the plain language of the
statute whether the prejudice with which the majority opinion
and court of appeals were concerned is relevant to the
availability of partition.

7
 No. 2014AP2097 & 2014AP2295.ssa

as proposed by the intervenors, all persons interested in the

real property (including Van De Hey and the lienholders) would

have an opportunity to be heard and have their interests

determined.10 See Parts II and III of this dissent.

¶76 Because it has not been shown that partition will

prejudice the rights or interests of persons with an interest in

the real property, I disagree with the conclusions of the

circuit court and court of appeals.

¶77 I would, in the absence of the parties' settlement,

remand the cause to the circuit court to consider whether to

order partition by sale or any other equitable remedies

necessary to untangle this thorny dispute.

¶78 For the reasons set forth, I write separately.

I

¶79 I begin by considering the nature of equitable

remedies and the equitable powers of a circuit court. I then

turn to partition. Partition is an equitable remedy dating back

10
See 4 John Norton Pomeroy, A Treatise on Equity
Jurisprudence § 1387 (Spencer W. Symons ed., 5th ed. 1941)
(discussing whether and under what circumstances mortgagees and
judgment creditors of tenants in commons should be made parties
to partition proceedings); see also Wis. Stat. § 842.04 (stating
that, in a partition action, "[i]f a judgment affecting the
interest of any . . . lienholder . . . is demanded, such person
must be joined as a defendant").

8
 No. 2014AP2097 & 2014AP2295.ssa

to Elizabethan times.11 In Wisconsin, "partition is a remedy

under both the statutes and common law."12

¶80 As the following texts and cases recognize, equitable

powers are broad and flexible:

• Equity has the "power to enlarge the scope of these

ordinary forms of relief, and even to contrive new ones

adapted to new circumstances . . . ." 1 John Norton

Pomeroy, A Treatise on Equity Jurisprudence § 116

(Spencer W. Symons, 5th ed. 1941).

• "If the customary forms of relief do not fit the case, or

a form of relief more equitable to the parties than those

ordinarily applied can be devised, no reason is perceived

why it may not be granted." Meyer v. Reif, 217 Wis. 11,

20, 258 N.W. 391 (1935).13

11
John Norton Pomeroy, A Treatise on Equity Jurisprudence
§ 1387 (Spencer W. Symons ed., 5th ed. 1941) ("As early as the
reign of Elizabeth, partition became a matter of equitable
cognizance; and now the jurisdiction is established as of right
in England and in the United States.") (footnotes omitted).
12
Watts v. Watts, 137 Wis. 2d 506, 535, 405 N.W.2d 303
(1987).
13
See also Prince v. Bryant, 87 Wis. 2d 662, 674, 275
N.W.2d 676 (1979) ("[T]he trial court has the power to apply [an
equitable] remedy as necessary to meet the needs of the
particular case."); Harrigan v. Gilchrist, 121 Wis. 127, 236, 99
N.W. 900 (1904) ("Though no precedent may be at hand in a given
situation, since principles of equity are so broad that the
wrong involved [or the right to be enforced] need not go without
a remedy, its doors will swing open for the asking, and a new
precedent be made, an old principle again being illustrated.").

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• "Equity can, at times, do complete justice in the

resolution of the controversy before the court, and the

court will use the remedy in order to prevent the same

controversy in the future." Mulder v. Mittelstadt, 120

Wis. 2d 103, 116, 352 N.W.2d 223 (1984) (citations

omitted).

• "Equity has followed the true principle of contriving its

remedies so that they shall correspond both to the

primary right of the injured party, and to the wrong by

which that right has been violated. It has, therefore,

never placed any limits to the remedies which it can

grant, either with respect to their substance, their

form, or their extent, but has always preserved the

elements of flexibility and expansiveness, so that new

ones may be invented, or old ones modified, in order to

meet the requirements of every case . . . ." 1 John

Norton Pomeroy, A Treatise on Equity Jurisprudence § 111

(Spencer W. Symons ed., 5th ed. 1941).
¶81 Partition is an equitable remedy that allows a court

to divide real property owned in undivided shares by two or more

persons either physically (into individually owned, separate

parcels) or, if division of the real property cannot be made,

then by sale with the proceeds divided.14

14
See 8 Jay E. Grenig, Wisconsin Pleading and Practice,
§ 76:2 (5th ed. 2012).

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¶82 "The right of a cotenant to partition and convey his

or her interest in real property is favored in the law; it is

often said to be a matter of right." Schneider v. Schneider,

132 Wis. 2d 171, 176, 389 N.W.2d 835 (Ct. App. 1986) (citation

omitted).

¶83 The phrase "interest in real property," used in

Schneider and oft-used in the partition statutes, is defined in

Wis. Stat. § 840.01 (for the purposes of chapters 840 to 846)

as including "security interests and liens on land . . . ."15

Chapter 842 of the statutes governs partition.

¶84 Section 842.02 declares that a person having an

interest in real property may sue for partition: "A person

having an interest in real property jointly or in common with

others may sue for judgment partitioning such interest unless an

action for partition is prohibited elsewhere in the statutes or

by agreement between the parties for a period not to exceed 30

years."

¶85 In partitioning real property, a circuit court has
broad equitable powers. For example, a circuit court may order

partition and a private sale that tracks the terms of an earlier

contract. As this court stated in Heyse v. Heyse, 47

15
Wisconsin Stat. § 842.01(1) defines "interest in real
property" as follows: "Interest in real property in addition to
the interests described in s. 840.01, includes rights and
interests in water power . . . . Interests of vendees under
land contracts are excluded." Section 842.01(2) states that
"'[l]ien' includes encumbrances" (emphasis added).

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Wis. 2d 27, 37, 176 N.W.2d 316 (1970): "[The statute], although

authorizing a sheriff's sale, does not compel such sale. It is

permissive and within the discretion of the trial judge to order

a sheriff's sale if he [or she] considers it appropriate. We

see no reason why the court cannot under the terms of these

statutes direct a sale by the parties, at least initially."

¶86 This court and the court of appeals have stated

various other principles of law governing the equitable remedy

of partition. For example:

• "Equity does not limit the trial court to the statutory

partition remedies found in Wis. Stat. § 842.02(2). The

power of the court to 'enlarge the scope of the ordinary

forms of relief, and even to contrive new ones adapted to

new circumstances' makes it possible that in its

discretion the trial court could have ordered a sale

tracking the terms and conditions'" of, for example, an

option contract. Schmit v. Klumpyan, 2003 WI App 107,

¶26, 264 Wis. 2d 414, 663 N.W.2d 331.
• "[I]t is within the discretion of the trial court to

order any remedy, including a private sale by the

parties, that is equitable." Schmit, 264 Wis. 2d 414,

¶22 (citing Heyse, 47 Wis. 2d at 37).

• "The equitable nature of a partition action gives the

trial court the discretion to fashion a remedy that meets

the needs of the specific case." Schmit, 264 Wis. 2d 414,

¶26 (citing Mulder, 120 Wis. 2d at 115).

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• A sale of the real property is a legitimate goal of a

partition. See Schmit, 264 Wis. 2d 414, ¶25.

• In certain cases, equity can "do complete justice in the

resolution of the controversy before the court," and the

court will use the equitable remedy in order to prevent

future controversy. Mulder, 120 Wis. 2d at 116; see also

Schmit, 264 Wis. 2d 414, ¶26.

II

¶87 I now turn to the decision of the circuit court

relating to partition. The circuit court concluded that

partition was inappropriate in the instant case because it would

prejudice Van De Hey.

¶88 A finding of prejudice to the owners "within the

meaning of Wis. Stat. § 842.17(1) requires a legal conclusion.

We are not bound by a trial court's conclusion of law." LaRene

v. LaRene, 133 Wis. 2d 115, 120-21, 394 N.W.2d 742 (Ct. App.

1986) (internal citation omitted).

¶89 The circuit court misinterpreted the law. It
concluded its equitable powers in ordering partition were

limited to only those remedies contained in Wis. Stat. ch. 842.

In so doing, the circuit court determined that either a physical

partition of the real property or a judicial sale at a public

auction would be prejudicial to Van De Hey.16

16
Prince, 364 Wis. 2d 457, ¶¶47-49.

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¶90 The circuit court failed to recognize that it was not

limited to the statutory remedies in ch. 842 and that Van De Hey

did not consider partition prejudicial to it. See Schmit, 264

Wis. 2d 414, ¶22 (citing Heyse, 47 Wis. 2d at 37). The circuit

court should have considered whether the appropriate equitable

remedy would have been ordering partition, specifically

partition by sale tracking the terms and conditions of the

parties' land contract, or whether some other equitable remedy

was available.

¶91 The circuit court erred in failing to consider

partition seriously as an available equitable remedy, in failing

to recognize the scope of its discretion in ordering partition,

and in failing to recognize that partition need not prejudice

the rights of Van De Hey.

III

¶92 I now turn to the decision of the court of appeals.

The court of appeals concluded that partition and a sale

tracking the terms of the parties' land contract would prejudice
the interests of Van De Hey and James Vandenberg's lienholders.

¶93 The court of appeals acknowledged that the circuit

court could have exercised its discretion to order partition and

a sale of the real property under the terms of the parties'

contract.17 The court of appeals affirmed the circuit court's

denial of partition, however, after concluding that "this

17
Prince, 364 Wis. 2d 457, ¶50.

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procedure would clearly prejudice the lienholders . . . by

terminating the security for Vandenberg's debts."18

¶94 The court of appeals erred, in my opinion, as a matter

of law.19 Contrary to what the court of appeals believed,

partition does not necessarily strip lienholders of their

rights.

¶95 To understand partition and its effect on lienholders'

rights and interests, I begin with guiding legal principles.

¶96 First, when real property is owned by tenants in

common, as in the instant case, with each individual co-tenant

having an equal, undivided ownership interest, a creditor of an

individual co-tenant may claim an interest only in that co-

tenant's share of the real property or proceeds of a sale

thereof.20 In other words, a creditor's rights in the real

property or proceeds of a sale are no greater than the debtor's.

18
Prince, 364 Wis. 2d 457, ¶50.
19
Although the court of appeals focused on prejudice to the
lienholders, the partition statutes focus on prejudice to the
owners of the real property. See, e.g., Wis. Stat. §§ 842.10,
842.11, 842.17(1).
20
4 Thompson on Real Property, § 32.07(e) (David A. Thomas
ed., 3d ed. 2004).

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A creditor has no rights in any of the interests held by the

remaining, non-debtor co-tenants.21

¶97 Thus the lienholders are entitled to no more than

James Vandenberg's one-quarter interest in the real property.

The liens attached only to James Vandenberg's one-quarter

interest in the real property, nothing more.22 As a result,

partition need not prejudice the lienholders; it would merely

confine the lienholders' interests to the interest in the real

21
See, e.g., 4 Thompson on Real Property § 32.07(e) (David
A. Thomas ed., 3d ed. 2004) ("Because each tenant in common has
an interest in the estate, a creditor of one cotenant can attach
that cotenant's share. . . . By the same token, the non-debtor
cotenant retains all the usual rights in the estate: the
creditor cannot complain, for example, if another cotenant
transfers an interest or begins partition proceedings. The
creditor, in short, can have no greater rights in the estate
than the debtor.") (footnotes omitted) (internal alterations
omitted); see also 7 Powell on Real Property § 50.07[3][a]
(Michael Allan Wolf ed., 2004) ("Each tenant in common has the
right to compel partition of the estate under judicial
supervision. . . . [T]he right to partition is unconditional
and cannot be defeated by a mere showing that a partition would
be inconvenient, injurious, or even ruinous to an adverse
party. The right to partition is an inherent element of the
tenancy in common, designed to prevent a forced continuation of
shared ownership of property. To deny it is to effectively
expand the property rights of one cotenant at the expense of
other cotenants.")
22
See, e.g., 4 Thompson on Real Property § 32.07(e) (David
A. Thomas ed., 3d ed. 2004) ("[A] judgment creditor's interest
in the tenancy in common is limited to the share of the indebted
cotenant . . . .")

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property on which the liens are secured——namely, James

Vandenberg's one-quarter interest.23

¶98 Because the liens may significantly exceed the value

of James Vandenberg's one-quarter interest (indeed they may

exceed the value of the property as a whole), some of the

lienholders may not get paid from the collateral. This result

may be inevitable, regardless of whether partition is granted.

James Vandenberg's interest in the real property apparently may

not be large enough to satisfy his debts, and denying partition

in the instant case will not change that fact.24

¶99 When a judgment of partition would affect the interest

of, among others, a lienholder or a person in physical

23
The majority opinion appears to agree with the circuit
court that "[p]artition . . . would result in reducing the
security by 3/4 for others who have encumbrances on the real
estate if their encumbrances were to remain on only James's 1/4
interest . . . ." See majority op., ¶50. This assertion is
erroneous under both partition law and garnishment. The only
portion of the property encumbered by the lienholders is James
Vandenberg's one-quarter interest. Whether partition is ordered
or not will not change that fact. The partition sought by James
Vandenberg, the intervenors, and Van de Hey is a partition by
sale, not a physical partition. Thus, the majority opinion's
assertion that "partition would have the effect of reducing by
3/4 the size of the property to which the liens attached" is
also erroneous. See majority op., ¶50 n.17.
24
Despite the majority's denial of partition in the instant
case, the tenants in common retain the right to sever the
tenancy in common at any time in the future. It makes little
sense to require the intervenors to return to court later to
sever their interests when the same result can be achieved in
the instant case.

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possession, such persons must be joined as defendants. See Wis.

Stat. § 842.04.

¶100 If the circuit court determines that partition is

proper, it may render a judgment of partition. See Wis. Stat.

§ 842.14(1). Partition severs the lienholder's interest in the

debtor's undivided share of the estate. See Wis. Stat.

§ 842.14(3) ("If partition is adjudged, existing liens shall not

be affected or impaired, except that a lien upon an undivided

interest or estate shall thereafter be a charge only on the

share assigned to the party against whom it exists . . . .")

(emphasis added).

¶101 Other provisions of the partition statutes, however,

pertain to the interests of lienholders when a partition by sale

occurs. The circuit court may order a partition by sale even if

tenants or lienholders do not consent, subject to the

nonconsenting tenants or lienholders' interests. See Wis. Stat.

§ 842.17(3). In the event of such a sale, the amount of the

liens upon the undivided shares is first determined, and the
court orders "a distribution of the money pertaining to such

shares to be made among the lien creditors according to the

priority thereof, respectively; and the clerk of court shall

procure satisfaction thereof to be acknowledged as required by

law and cause such lien to be duly satisfied of record . . . ."

See Wis. Stat. § 842.23.

¶102 The court of appeals did not consider these provisions

or other provisions in the partition statutes that confine the

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lienholders' interests to the debtor's share of the property to

which the lien attaches.

¶103 The court of appeals, in my opinion, should have

considered these statutes, as well as Wis. Stat. § 842.24, which

discusses partition proceedings to settle liens as follows:

842.24 Proceedings not to affect whom. The proceedings
to ascertain and settle the amount of liens, as herein
provided, shall not affect any other party in such
action nor delay the paying over or investing the
moneys to or for the benefit of any party upon whose
interest there does not appear to be any existing
lien.
¶104 In the exercise of its equitable discretion to

determine the appropriate remedy in the instant case, I conclude

that, in the absence of the parties' settlement, the circuit

court should give full consideration on remand to the request of

James Vandenberg, the intervenors, and Van De Hey for partition

and to the interests of the lienholders.

¶105 Because I conclude that the circuit court and court of

appeals made errors of law by not fully considering equitable

remedies and partition, I would reverse the decision of the

court of appeals and would, setting aside my questions regarding

the parties' settlement, remand the cause to the circuit court

for further proceedings to consider partition and other

appropriate equitable remedies.

¶106 For the reasons set forth, I write separately.

¶107 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

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