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COURT OF APPEALS
DECISION
                                                                DATED AND RELEASED
                                                                                                                       NOTICE
                                                                June 10, 1997
                                                                A  party  may  file  with  the  Supreme  Court  a      This opinion is subject to further editing. If
                                                                petition  to  review  an  adverse  decision  by  the   published, the official version will appear in
                                                                Court of Appeals.   See § 808.10 and RULE 809.62,      the bound volume of the Official Reports.
STATS.
No.                                                             96-2780
STATE OF WISCONSIN                                              IN COURT OF APPEALS
                                                                DISTRICT III
RICHARD E. CARTER,
PLAINTIFF-APPELLANT,
V.
AUDREY B. SCHRAM,
DEFENDANT-RESPONDENT,
BAYLAKE BANK, F/D/B AS BANK OF STURGEON BAY,
STEVE ROEM, RONALD HOEHM, RAYMOND SCHILD,
LINDA M. SCHILD, GERALD D. MUNDT, PERSONAL
REPRESENTATIVE AND TRUSTEE  OF GERALD D. MUNDT
TRUST AND JOHN OR JANE DOE,
DEFENDANTS.
APPEAL  from  a  judgment  of  the  circuit  court  for  Door
County:   PETER C. DILTZ, Judge.   Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ.




NO.   96-2780
PER  CURIAM.  Richard  Carter  appeals  a  judgment  declaring
interests in land located on the shore of Lake Michigan.    Carter, who owns a
nearby lot,   claims that he was entitled to an easement running with an adjacent lot
in perpetuity.   Based upon a 1983 deed, the trial court concluded that the easement
was personal to Carter and was not a permanent restriction on the estate upon
which the easement was imposed.   Carter argues that he is entitled to an easement
running with the land as contemplated in a  1971 offer to purchase agreement.
Because Carter's claim is barred by the statute of limitations and the trial court
properly  enforced  the  easement  imposed  in  the                                     1983  deed,  we  affirm  the
judgment.
This case was tried to the court, and its findings of fact are not
challenged on appeal.   In 1971, Audrey Schram accepted Carter's offer to purchase
a lot for $3,500.   The offer to purchase contract contained the following language:
"Seller shall have entered on the deed an easement that shall run with the land
granting the buyers access to the shores of Lake Michigan across the adjacent
property."   The contract provided that the transaction was to be closed on or before
December 1, 1971, or as otherwise agreed.
Neither party recalls a formal closing, but the record shows that
Schram executed a warranty deed on August 7, 1972, and recorded August 31.   A
second "correction deed" from Schram to Carter was signed March 3, 1973, and
recorded  April  23,  1973.1    Neither  deed  contained  any  language  granting  an
easement.   The trial court concluded that Carter accepted the 1973 deed although it
did not live up to the offer to purchase agreement.   "Certainly after the recording
1 The parties in their briefs do not describe the purpose of the correction deed.
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NO.   96-2780
of the correction warranty deed on April 23, 1973, the purchaser[] had waived the
contingency or language agreeing to grant an easement."   The court also found that
since Carter received the initial warranty deed in August of 1972, he continuously
crossed Schram's adjacent lot to get to and use the beach.
Intermittently, Carter expressed his dissatisfaction with the deeds to
Harold Larson, Schram's husband, who was deceased at the time of trial.   Larson
was a real estate broker and, because Carter had dealt almost exclusively through
him for the purposes of this transaction, the trial court found that Larson had acted
as Schram's agent.
In October 1983, Schram signed a quitclaim deed granting Carter an
easement "for purposes of ingress and egress to the shoreline and waters of Lake
Michigan across the Southerly 10 feet of the following described land: [describing
Schram's lot]."  The deed also   provided:  "This easement is granted to the grantees
for only such period  of  time as the  grantees are the owners of  that property
described in Volume 239 of Records, page 275, Door County Records … and shall
terminate at such time as the grantees are no longer the owners of such tract of
land."
Schram's signature on the 1983 deed was neither authenticated nor
acknowledged.   The day of the month was also omitted.   The court found that the
deed was delivered to Carter; it was not, however, recorded.   The court concluded
that the non-recording had no effect between the parties to the deed.   In 1992,
Carter recorded an affidavit giving notice that Schram had agreed to furnish an
easement to Lake Michigan running with the land.   The trial court concluded that
Carter's interests in the shore lot were as described in the October 1983 deed and
no more.
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NO.   96-2780
Carter argues that he is entitled to enforce the 1971 offer to purchase
agreement   that he would have an easement running with the land for access to the
Lake Michigan shoreline.    He argues that the offer to purchase  contract is a
conveyance under § 706.01(4), STATS.; and that he has rights under § 893.33(1)
and (2), STATS., to bring an action to enforce his rights within thirty years.2   We
disagree.
2
Section 893.33, STATS., provides:
(1)  In this section                                                                   “purchaser” means a person to whom an
estate,  mortgage,  lease  or other  interest  in real  estate  is
conveyed, assigned or leased for a valuable consideration.
(2)  Except as provided in subs. (5) to (9), no action affecting the
possession or title of any real estate may be commenced, and
no defense or counterclaim may be asserted, by any person,
the state or a political subdivision or municipal corporation
of the state after January 1, 1943, which is founded upon any
unrecorded instrument executed more than 30 years prior to
the  date  of  commencement  of  the  action,  or  upon  any
instrument recorded more than 30 years prior to the date of
commencement of the action, or upon any transaction or
event occurring more than  30 years prior to the date of
commencement of the action, unless within 30 years after
the execution of the unrecorded   instrument or within  30
years after the date of recording of the recorded instrument,
or within 30 years after the date of the transaction or event
there is recorded in the office of the register of deeds of the
county in which the real estate is located, some instrument
expressly referring to the existence of the claim or defense,
or  a  notice  setting  forth  the  name  of  the  claimant,  a
description of the real estate affected and of the instrument
or transaction or event on which the claim or defense is
founded,  with  its  date  and  the  volume  and  page  of  its
recording, if it is recorded, and a statement of the claims
made.  This notice may be discharged the same as a notice of
pendency of action.  Such notice or instrument recorded after
the expiration of 30 years shall be likewise   effective, except
as to the rights of a purchaser of the real estate or any
interest in the real estate which may have arisen after the
expiration of the 30 years and prior to the recording
(3)
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NO.   96-2780
The offer to purchase contract is not an instrument of conveyance.
First Nat’l Bank v. Chafee, 98 Wis. 42, 48, 73 N.W. 318, 319 (1897).   It is a
contract to purchase land.   Section 893.33(4), STATS., provides that the thirty-year
limit does not extend the right to commence an action if any other statute of
limitations has extinguished the right.3   Because the offer to purchase is a contract,
it is governed by the six-year statute of limitations found in  §  893.43, STATS.
Carter's right to enforce the agreement was extinguished by § 893.43, six years
after Schram breached her promise to convey an easement running with the land.
Schram breached her agreement when she deeded the property to Carter in 1972
without the easement contemplated in the purchase contract.4
Next, Carter argues that the trial court erroneously applied §§ 885.16
and                                                                                          885.17,  STATS.,  the  deadman's  statutes,  to  bar  testimony  concerning
conversations with a deceased person or a deceased agent.   Because we conclude
that Carter's claim is extinguished by § 893.43, STATS., we do not reach this issue.
Carter  further  argues  that  the  recording  of  his  affidavit  in                        1992
extended the time for bringing an action to enforce his rights for another thirty
years under  §  893.33(3), STATS.,5 and for forty years under  §  893.33(6).6 We
3  Section                                                                                   893.33(4),  STATS.,  provides:                                                                 “This section  does  not extend the right  to
                                                                                             commence any action or assert any defense or counterclaim beyond the date at which the right
would be extinguished by any other statute.
4 Carter does not discuss the application of § 706.04, STATS.   The parties’ briefs do not
discuss the doctrines of merger.
5  Section 893.33(3), STATS., provides:
The recording of a notice under sub. (2), or of an instrument
expressly referring to the existence of the claim, extends for 30
years from the date of recording the time in which any action,
defense or counterclaim founded upon the written instrument or
transaction  or  event  referred  to  in  the  notice  or  recorded
instrument may be comm`enced or asserted.    Like notices or
(continued)
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NO.   96-2780
disagree.    Carter's  right  to  an  easement  was  not  set  forth  in  any  recorded
instrument.   His affidavit was not sufficient to impose an enforceable right, see
§ 706.02(1)(d), STATS., and, in any event, was not recorded before the § 893.43,
STATS., extinguished his contractual rights.
Finally, in his reply brief, Carter argues that principles of equity and
unjust enrichment support his claim.   We decline to address arguments raised for
the  first  time  in  a  reply  brief.    See  Sisters  of  St.  Mary  v.  AAER  Sprayed
Insulation, 151 Wis.2d 708, 723 n.4, 445 N.W.2d 723, 729 n.4 (Ct. App. 1989).
By the Court.—Judgment affirmed.
This opinion will not be published.   See RULE 809.23(1)(b)5, STATS.
instruments may thereafter be recorded with the same effect
before the expiration of each successive 30-year period.
6 Section 893.33(6), STATS., provides:
Actions to enforce easements, or covenants restricting the use of
real estate, set forth in any recorded instrument shall not be
barred by this section for a period of 40 years after the date of
recording  such  instrument,  and  the  timely  recording  of  an
instrument expressly referring to the easements or covenants or
of notices pursuant to this section shall extend such time for 40-
year periods from the recording.
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NO.   96-2780
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