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Johnson o. Olmsted.

The average

The property in question has been held and owned in common since 1806. It has always been occupied by tenants, and for the last twenty-five years or more has been managed by Charles W. Johnson, one of the plaintiffs, and before that for a long time was managed by his father. There has never been any difficulty in leasing the property or collecting the rents or managing the same. annual net income of the property for the last ten years has been $10,083.04; for the last five years $8,802.72; and for the last three years $7,800.72. All the owners have been satisfied with the management, and there has been no complaint or disagreement in relation thereto. Some of the buildings have been extensively repaired, and, within the last fifteen years, one new building has been erected, all the owners contributing their proportion of the expense. At that time the number of the owners was smaller than at present, and they were all of age, and agreed in writing to share in the expense. Two of the defendants at the trial expressed their willingness to contribute to any further necessary expense for repairs. The shares of all the tenants in common have been obtained by purchase by them or by those under whom they claim, except that of Aaron G. Olmsted, who holds by descent from Aaron G. Olmsted, the last owner in severalty. The managers of the property have reserved a suitable compensation for their services.

The property is now owned in the proportions and by the persons alleged in the complaint, and as there appears. There are three owners, each having one 144th part. Each one of them is well advanced in life, and each one of them has six persons who would, in case of death, intestate, be heirs to the estate. So that if any one of them should die intestate and his share should be equally divided among all the heirs, the number of owners would be proportionally increased and the fractional part owned by each would be one 864th.

Two of the three buildings on the property are old, and will soon require removal for the erection of new buildings.

The plaintiffs desire that the property should be sold.

Johnson v. Olmsted.

The defendants are opposed to this sale and mainly for the reasons---(1) that the property cannot at the present time, as they claim, be advantageously sold, and (2) that they know of no way at present in which the avails can be safely invested so as to bring as much income as the property brings. There was evidence before the court, and the court finds, that for some years before bringing this complaint real estate in Hartford was somewhat depressed. There was also evidence that real estate is now rising and it was claimed that in a few years the property could be more advantageously sold; and also it was claimed from the evidence that there would be difficulty in investing the money, if the estate is sold, as safely and profitably as it is now invested. In respect to these last claims the court makes no finding, except that it is found true that there will be some difficulty in loaning the money as safely and profitably as it is now invested. The whole property is worth $75,000 and upwards, and is so situated that it can be sold in three separate parts of nearly equal value. But it is impossible to apart it so that each owner may have his share in severalty.

Henry Talcott, one of the defendants, is the husband of Elizabeth Talcott, one of the owners, who is also a defendant, and they have three living children.

The defendants claim that by a proper construction of the statute authorizing the sale of real estate held in common, the above facts did not make it for the interest of the owners to order a sale; that the interest of the owners which must be found to exist to authorize such sale was a pecuniary interest; and that the statute did not authorize the sale of the interest of Henry Talcott, which is that of a tenant by the curtesy. But the conclusion of the court is, and it is so found, that it is for the interest of the property and of the owners that the property should be sold.

The court, upon these facts, passed a decree ordering a sale of the property, and the defendants brought the record before this court by a motion in error.

Johnson v. Olmsted.

D. C. Calhoun and C. E. Perkins, for the plaintiffs in error.

First. The first question in the case is, as to the meaning and construction of the statute (Rev. of 1875, p. 481,) which is as follows:-“ Courts of equity may, upon the petition of any person interested, order the sale of any estate real or personal owned by two or more persons, when in the opinion of the court a sale will better promote the interests of the owners; and of any real estate in which or any portion of which two or more persons may have different and distinct interests, when in the opinion of the court such real estate cannot be conveniently used and occupied by the parties in interest together, and a sale will better promote the interests of the owners." This statute authorizes the sale of three kinds of property: undivided real estate owned by tenants in common, personal property owned by tenants in common, and real estate in which different persons have “distinct interests." In each of these three cases to authorize a sale it must be found that it will better promote the interests of the owners. Two questions arise as to the construction of this clause: first, as to the meaning of the word “better,” and second, as to the meaning of the word “interests."

1. The sentence is incomplete on its face; the sale must better promote the interests of the owners than something else would do, but better than what? Is it better than to have the property continue undivided, or better than to have a partition made? Upon the determination of this question depends the decision of this case. The defendants claim that the meaning is, that the sale must be better for the owners than to have the property remain undivided; and if this is the proper construction the facts found show clearly that no sale should be ordered, while, as it is found that no fair partition can be made so that each owner may have his share in severalty, it will be admitted that a sale is better than an unfair partition. The plaintiffs say that the intention of the legislature was to give power to the court, either to divide property held in common, or to order it to be sold if it was not desirable to have it divided, and

Johnson o. Olmsted.

either a partition or a sale could be had in all cases of real estate held in common; which of the two should be adopted depending entirely on the opinion of the court. This power depends entirely upon the statute, and the best way of arriving at the intention of the legislature is to examine the various statutes on the subject. Prior to 1848 there was no power in the court to order a sale of lands held in common. The only remedy, if the owners could not agree to divide, was by a division made by the court. In 1848 the legislature passed an act, the first section of which authorized the Superior Court as a court of equity to order a partition, and the second section authorized a sale “whenever in the opinion of the court a sale will better promote the interests of all parties than a partition.” This statute clearly gave the power to the court which it is claimed now exists. This extraordinary power, however, lasted only a few years. In 1852 a new act was passed in its place, authorizing a sale “ whenever, in the opinion of the court, a sale will better promote the interests of the parties in interest.” In this act the expression “than a partition " is left out, and the power of the court is placed upon the promotion of the real interests of the parties-a most reasonable and just rule. If this statute had remained exactly so down to the present time, there could hardly be a doubt about its meaning. It is well settled that when the language of a subsequent statute differs from that of a former one on the same subject by the omission of a clause or phrase, such omission is the strongest evidence that a different construction is intended. In 1853 another act was passed, authorizing a sale “whenever, in the opinion of the court, a sale will better promote the interest of all parties than a partition, and whenever, in the opinion of the court, the property cannot be conveniently occupied in common.” " This act by implication repealed the preceding act, which had repealed the act of 1848, under the well-known rule that an act covering the same ground as a former one, but adopting a different and inconsistent rule, repeals such former one; but it was in substance the same as the act of 1852. It used the expres

VOL. XLIX–65.

Johnson v. Olmsted.

sion “than a partition,” but limited it by saying that a sale could only be had where the property could not be conveniently occupied in common.” The power of the court to sell what could not be divided was no longer absolute, but was especially restricted to cases where it could not be beneficially used by the owners. It has long been a settled rule, both of law and equity, that a right to partition or actual division is absolute. Scovill v. Kennedy, 14 Conn., 349, 361. At first the power to sell was made as broad, but it was soon seen that this was unreasonable. Something might be said in favor of one owner in property that could be divided having his share set to him, but when it came to selling out the property of unwilling owners, when it could perfectly well be occupied in common, it was evidently too great and unreasonable an exercise of power to be allowed. In 1858 an act was passed authorizing the sale of personal property held in common, as follows:“ The Superior Court, as a court of equity, may, upon the petition of any person interested, order the sale of any personal estate owned by two or more persons, whenever, in the opinion of the court, a sale will better promote the interests of the parties in interest.The use of this expression here is very important in deciding upon its meaning, as it is the same as that in the present statute, substituting “owners" for "parties in interest." It cannot be claimed here that a sale is to be made when it is better than a partition; for no partition is authorized or possible in an article of personal property. The only possible meaning which the phrase can have here is, that a sale is authorized when it will better promote the interest of the owners than to have the property remain in common; and as it will appear that real and personal property are to be governed by the same rule under the present statute, the inference is unavoidable that the rule applicable to personal property is also to be applied to real estate. In the revision of 1866 (p. 398, secs. 41, 42,) all prior acts were repealed and a new act was passed, as follows:-"Sec. 41. The Superior Court, as a court of equity, may, upon the petition of any person inter

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