Baldwin v. Aldrich , 34 Vt. 526 ( 1861 )

Aldis, J.

I. The first and third pleas are demurred to4

The first plea states the premises are not partible. The petition prays, first, for partition, and, second, if not partible, that the premises may be assigned or sold pursuant to the statute. Hence a plea merely that they are not partible is no sufficient defence to the petition. The third plea states that the petitioner has not been hindered in his enjoyment of his share of the premises. Is that a good defence ? The plea is drawn upon the basis and after the form in 1 Aikens.

In Brown v. Turner et al., 1 Aik. 350, the petitioner prayed for a partition of a saw mill, mill yard and pond. The court held the premises were not partible. Hutchinson, J., then proceeded to say, “ This disposes of the whole case, for the only prayer is for partition. But if the prayer in the petition were for an assignment to one, or a sale of the whole, the court would not deem it proper to make any such order without different reasons from those which now appear. If the conduct of the petitioners were such that the petitioner could not enjoy his turn in the occupation of the premises, it would bear a different consideration.”

All of the opinion that bears upon any controverted point in this case is clearly mere “dictum.” If Judge Hutchinson’s opinion extended to this — that when property held in common could not be divided without great inconvenience to the parties interested,' the court should refuse to make an order for assignment or sale pursuant to the statute, unless the petitioner could prove that he was hindered in the enjoyment of his share, we think the position untenable. There is nothing in the statute thus limiting or abridging the right of the petitioner or the power of the court. The first section of the statute provides that “ any person holding real estate with others as joint tenants, tenants in common or co-parceners may have partition.” The fourteenth section says, “ when it shall appear to the court that such real estate, or any portion of it, cannot be divided without great inconvenience to the parties interested, they may-order the same to be assigned to one of the parties,” &c.; and section fifteen, “ if no one of the parties will consent to take the assignment, the court shall order the commissioners to sell it a$ public or private sale,” &c. Hence by statute on account of “the great inconvenience to tbe parties” of partition, assignment to one with his consent at an appraised price is first substituted ; and if no one will consent, then sale and a division of the proceeds come next. There is nothing to indicate that assignment and sale do not stand upon the same ground of common law right as partition ; — or that they are to be put upon the narrow ground of proof of injury to the possessory right of the tenant. Nor is there, as we can see, any reason why such dis_ tinction should be made between property partible and not parti ble. If the tenant in common of a farm is always allowed by his co-tenant to have his turn in the occupancy, why has he any greater right to partition than the owner of a saw mill enjoying his share in a like manner has to a division by assignment or sale. Both seem to us to stand in the common law right, and to seek the same end for the same reasons, through proceedings necessarily dissimilar in their progress but arriving at the same result.

II. The second plea alleges that the plaintiff and defendant are not joint owners of the premises ; but that the defendant owns a mechanics’ shop and water privilege standing on a portion of the premises described in the petition,"and has the whole title and interest in the same, and claims that the deed from B. P. and G. P. Baldwin to him set forth in the petition shows such his title. The plaintiff replies, setting forth his title under the same deed, and insists they are tenants in commoD, and so issue is joined ; — upon this a trial was had by the court.

The Baldwins being the sole owners of the premises, conveyed one-lialf of the premises to the defendant. If the deed stopped here, the plaintiff and defendant, it is admitted, would be tenants in common of the whole. But in the deed, after granting one-half to the defendant, there is this further clause : “ With the right to said Aldrich to put in a mechanics’ shop and planing mill between the saw mill and gristmill, and to take water from the flume for the same, so as not to interfere with the use of the water for the saw and grist mills, or such machinery as may be substituted for them.” The defendant has built the mechanics’ shop on the land, and has been and is in the e&clugive occupation of it. Has he a fee, or an easement, or only a temporary right by license ?

We think it must be regarded merely as a license. Had the parties intended to pass the- fee they would have executed a deed in the usual form of the land intended to be conveyed. So the limiting the use to a mechanics’ shop and planing mill indicates the intent to grant the use for a temporary purpose, but not to pass the fee. So the words, “ with the right to said Aldrich,” not, to him his heirs or assigns, show the like intent. We. think it passes a right to erect and exclusively use the shop and planing mill while they last but that the right expires with the decay of the structure. Hale v. Chaffee, 13 Vt. 150; LeFevre v. LeFevre, 14 S. & R. 241; 17 S. & R. 383.

The plan of the premises and the exceptions show that the plaintiff and defendant are tenants in common of the saw mill and mill yard, and that the mechanics’ shop covers but a very small portion of the premises. The defendant claims that his right to the shop and its exclusive possession defeats the plaintiff’s right to a partition, not only of the shop and land covered by it, but also of the remainder of the premises — that the plaintiff must prove a joint interest in the whole of the premises described in his petition, in order to have judgment for partition.

We think the seventh section of the chapter on partition was intended to relieve the plaintiff from such strictness of proof and to enable him to have a severance of the joint interest according to his right, though his interest is not correctly described in his petition. The words are, “ if the petitioner holds a less share than he claimed in his petition, judgment shall be rendered that partition be made according to the title of the respective owners.” It would, we think, be narrowing the meaning of the act to construe the word share to apply only to undivided interests and not to superficial area. A party who declares for an interest in fifty acres, and proves an interest in only twenty-five, may as well have division of the twenty-five, as he, who declares for an undivided half of fifty acres, and proves that he owns but a third, or that his third extends only to twenty-five acres, may haye a division pf such “less ghare,” Such too the eases show has been the practice under the act. See Howe v. Blanden, 21 Vt. 315. The petitioners therefore are entitled to partition, or to assignment or sale of all of the premises described in the petition, except so much as the defendant has the exclusive possession of, by' his mechanics’ shop and the use thereof.

As to the reversionary interest which the plaintiff and defendant jointly own in the land on which the shop stands, we think the plaintiff is not entitled to partition.

It was decided in Nichols et al. v. Nichols et al., 28 Vt. 228, that the joint owners of the reversion of a farm in which a third party had a life estate, could not have partition. This was put upon the ground that the petitioners had no possession or right of immediate possession, and could have no possession till the termination of the life estate. The reason given is that a just division, made during the existence of a life estate, might become an unequal one when the parties came to the possession of their land. The opinion of Judge I sham is so full on this point, and his review of the authorities is so complete, that we need but refer to that decision. We think it applies to this case.

Judgment is therefore reversed, and the case remanded to the county court for the appointment of commissioners to make assignment or sale of all the premises described in the petition, except so much thereof as is exclusively occupied by the defendant by his mechanics’ shop, and for the use of the same.