Horgan v. Bickerton ( 1891 )

Counsel for the respondents, Bickerton, has reargued the question decided in the opinion of the court September 28, 1891. He contends that the effect of that opinion is to change the conveyance which was considered in it from a conveyance of the right, title, and interest of the tenants in common making it, in a specific portion of the common property, to a certain fractional interest in the whole of that property, and states that the court aims to accomplish that result by ascertaining the area of the specific portion and then computing the ratio which that area bears to the area of the whole, and allowing the grantee to take the fractional share, thus ascertained, in the proceeds of the sale of the common property.

Counsel seems to have entirely misconceived the effect of the opinion. The effect of that opinion is not to change the conveyance, as is stated; it gives to the grantee in the deed, not an interest, fractional or other, in the whole of the common property, or in a specific part of it, but merely a share of the proceeds of the sale of that property, measured by the interest in the specific portion of the property conveyed to him in the deed, it being conceded that partition cannot be made by metes and bounds, but must be by sale.

Counsel has cited numerous cases in relation to conveyances by tenants in common of a specific portion of the common property by metes and bounds, which he claims establish certain classes of cases as the only cases in which such conveyances will be upheld, and he contends that the conveyance in the present case does not fall within either of these classes. With reference to these cases we deem it necessary only to refer, as we did in our former opinion, to the rule recognized by this court in Crocker v. Tiffany,9 R.I. 505, 506, 512, which seems to us the true rule as to the extent to which such conveyances should be upheld. That rule is, that the conveyance will be sustained provided effect can be given to it without prejudice to the rights of the cotenant. Our decision rested upon the conceded fact that partition in the present instance could be made only by sale, and not by metes and bounds. It is quite possible that if partition was to be made by metes and bounds, that effect could not be given to the deed without prejudice to the rights of the cotenants, in which event it could not be sustained. But where the partition can be made advantageously only by sale, we see no difficulty in giving effect to the deed by a division of the proceeds, without prejudicing the rights of any one; especially in a case in which the lot to be sold is a small parcel, containing only 2,446 square feet, no part of which is more valuable than another, since the entire lot is none too large for the erection of a desirable building for business or other uses.

Counsel also criticises the opinion because it disregarded the existence of the building covering the whole of the specific portion, but not the whole lot. It is true that we did not take into account this building. It was not suggested, either in the answer or in argument, that the building was of any particular value, and it did appear from the evidence submitted that it was a very old structure; it did not occur to us that it was regarded by the parties as of any value for the purpose of sale. The omission to take it into account, however, if an error, was an error resulting to the advantage of the respondents, Bickerton, since their share of the proceeds arising from the sale would be increased by the two ninths of the proceeds of the portion of the building specifically conveyed by the deed, in which they have no interest. If it is desired, provision can be made in the decree for an appraisal of the building for the purpose of sale, and for a division of its value among the parties according to their interests.