Warner v. Eaton

The plaintiff has not lost his title to 7/32 of the homestead which he owned in common with his mother at the date of her conveyance of a parcel thereof to the defendant because of his failure to assert his title while the defendant improved the property. Clark v. Parsons, 69 N.H. 147. But her deed of the whole of a distinct parcel of the common property is good to the extent of her interest. P. S., c. 137, s. 18. Her deed is also valid against the plaintiff in partition unless the land conveyed or some portion of it is equitably required to give him his just share in the whole. Horner v. Reynolds, 76 N.H. 259; Clark v. Parsons, 69 N.H. 147, 157; Holbrook v. Bowman, 62 N.H. 313, 321. Except in such contingency, her deed is a partition of the premises. Pickering v. Moore, 67 N.H. 533, 536; Gage v. Gage, 66 N.H. 282, 288. It does not appear that, upon a partition of the whole estate, plaintiff's just share cannot be set off to him or equitably satisfied without interference with the small parcel which the defendant holds under deed from the plaintiff's co-tenant. The fact is not found, but the inference from the facts stated is that this can easily be done. Until it is found that this cannot be done the defendant has a good title against the plaintiff.

It was suggested in argument that such course is now prevented by legal proceedings that have been had. If with notice to, or assent by, the defendant, so that he is now bound, the rights of others have so attached to the balance of the homestead that the defendant may not now insist upon the allotment of the plaintiff's share out of that part of the property either by new proceedings or the bringing forward of any that may have been had and the entry correct judgment therein, the plaintiff may be entitled to share in the tract conveyed by his mother.

Should such partition become necessary, the plaintiff will, upon partition, be entitled to 7/32 of the land and the defendant to 25/32 the land and the buildings. The plaintiff's expectation that by silence he could in a division of the property obtain part of the defendant's property without paying for it must have been formed in ignorance of the equitable principles upon which partition proceeds both under the statute and in equity. Hale v. Jaques, 69 N.H. 411.

"Where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or if that cannot be done, he will be entitled to a compensation for those improvements." 1 Story Eq. Jur., s. 655. This may be the rule even when one co-tenant is ignorant of the improvements made by the other who is also aware of the nature of his own title (Leavitt v. Locke, 68 N.H. 17; Ford v. Knapp, 102 N.Y. 135, 140; Crafts v. Crafts, 13 Gray, 360) and must be so generally for the division to be made is an equitable one, and it is not generally equitable to permit one man's property to be transferred to another without payment of some kind. Under the statute, if 7/32 of the land cannot equitably be assigned the plaintiff without serious inconvenience to the occupation by the defendant of the remainder with his building and the parties do not assent to the assignment of the whole to one, with equalization by payment (P. S., c. 243, ss. 24, 25), the property may be sold under the order of the court and the proceeds divided by giving 7/32 of the value of the land without the improvements to the plaintiff and the balance to the defendant 'or such other division made as may be found equitable upon the facts proved. P. S., c. 243, s. 26.

As the case now stands, the plaintiff has not shown himself entitled to partition although he may be able to do so.

Case discharged.

All concurred.