Harkness and Others v. Remington , 7 R.I. 154 ( 1862 )

This agreement for the division of a joint estate is a singular one, as construed by the plaintiffs, to wit, that the tenants in common, owning the major part of the joint estate, were to divide it amongst the co-owners as such majority should deem to be just and equitable, and that this division should be binding upon the others. The agreement, literally considered, may bear this interpretation; but the more natural one, looking at the substance of the matter, is that suggested in the answer of the defendant, and sworn to by him, as that under which he signed it, — that the land was to be divided in the mode arranged by the majority in interest, but as is usual, in some mode, if not by disinterested persons, so that, by lot, or bidding for a choice, the rights of the minority might be secured. It is true, that the answer does not raise the issue, that the division made was unfair to the defendant; but the mode of making it, — to set off to the defendant, without his assent, or giving him a chance to right himself, a certain portion of the common land, and to insist that he should abide by it, — is the last mode, where, as here, there was a choice of modes, that would suggest itself to those who desired, to enforce their doings, the aid of a court of equity. Besides, there is the absence here of all valuable consideration for the agreement, — always requisite where the specific execution of a contract wholly in fieri is sought in a court of equity, — and in this aspect, no additional force is given to the agreement because it is evidenced by an instrument under seal. Adams on Equity, 78. We look in vain for the "mutual benefit" in this agreement, as construed by the plaintiffs, which was the support of the agreements enforced inPenn v. Lord Baltimore, 1 Ves. Sen. 444, and in Beckley v.Newland, 2 P. Wms. 182, 183. Upon the construction of the plaintiffs, this agreement for a partition puts the rights of the minority at the mercy of the majority in interest, without a chance of escape.

In fine, where the right is so certain and the remedy so easy, as in the partition of a joint estate, we do not feel called upon to exclude the defendant from it, by giving to the plaintiffs our aid in the enforcement of a contract so liable to be misunderstood, on account of the barrenness of its terms, and so unjust and unconscionable, as interpreted by the plaintiffs; but prefer to turn them over to the alternative prayer of their bill, and to appoint disinterested commissioners to make partition between the parties, by metes and bounds, according to their rights, as set forth in the bill, and admitted by the answer. The streets and public square laid down on the plat mentioned in the pleadings, must, according to the agreement of the parties thus declared, and out of regard to the rights of those who have bought lots of them upon the faith of it, be excluded from the partition. If the plaintiffs desire an account of rents and profits over and above the taxes paid by the defendant and his charge and care, which the agreement for the first year of his occupation supposed would balance each other, they can have it, and a master must be appointed for the purpose of taking it.