Horgan v. Bickerton

This is a bill in equity for partition by sale of a certain lot of land situated in Newport, and bounded and described as follows, viz.: Westerly on Thames Street, forty-two and 95/100 feet; southerly on Mill Street, fifty-two and 12/100; easterly on land of the Wilbur estate, fifty and 43/100 feet; and northerly on land of the respondent, Bickerton, fifty-two and 1/10 feet, on which there is a dwelling-house covering almost the entire land, with two stores in the first story, and a small one-story shop in the rear of the dwelling-house. The cause was heard on bill and answer. The parties disagree as to their interests in the premises, the controversy between them being with reference to two ninths of that part of the premises conveyed by Eliza Carr and Catherine Cox, each being seized of an undivided ninth, to Nathan Hammett, by a quitclaim deed without covenants, dated September 13, 1856. In this the premises conveyed were described as "the store numbered on the east side of Thames Street, and in the building situate on the corner of said Thames and Mill streets in said Newport, which said store is now occupied by John H. Cozzens, together with all our right, title, and interest in and to the land upon which the same is situate, including as a part of the said store the office or room out from the southeast corner of the main room." Subsequently, Eliza Carr, by deed dated September 18, 1868, conveyed all her right, title, and interest in the entire premises to Sarah E. Stevens. Catherine Cox, also, by deed dated May 24, 1876, conveyed all her right, title, and interest, in the entire premises, subject to certain reservations not material in this connection, to the respondent, Louisa M. Bickerton. Whatever interest in the premises, if any, was conveyed by the deed first referred to from Eliza Carr and Catherine Cox to Nathan Hammett, has passed by mesne conveyances to the complainant; and whatever interest was conveyed by Eliza Carr to Sarah E. Stevens by the deed secondly referred to has passed by mesne conveyances to the respondents, Charles and Louisa M. Bickerton.

The respondents claim that, under the deed from Eliza Carr and Catherine Cox to Nathan Hammett, only the right, title, and interest of the grantors in the store, and the office or room out from the southeast corner of the main room, and the land under the store and said office, were intended to be conveyed; that as the condition of the locus at the date of the deed in 1856 was the same as it is now, and as it is conceded that the premises cannot be divided by metes and bounds, the right, title, and interest which each tenant had in the premises was the right to take proceedings to have a sale made for the purpose of partition, or, in other words, that neither Eliza Carr nor Catherine Cox had any interest in the store then occupied by John H. Cozzens, and the land on which the same was situate, which they could convey in fee; that their release of their right, title, and interest was only valid until such time as a sale of the whole estate for the purpose of partition should be made; and that they could do no act to prejudice the right of their cotenants, William M. Carr and Sarah C. Carr, to have a sale of the whole estate made for the purpose of partition.

The complainant at the hearing conceded that all that passed under the deed in question was the store and the land under the store, so far as the grantors had an interest in it, but he maintained that the deed was a valid and effectual conveyance of their interest, and he further contended that the answer did not show that at the date of the deed the building was divided as shown upon the plat submitted by the respondent.

There are authorities to the effect that one tenant in common cannot as against his cotenant, without the latter's assent, convey a part of the common property in severalty by metes and bounds, though such conveyance would be valid and effectual as against himself and all persons claiming under him. The reason is, that such a conveyance impairs the rights of the cotenant in respect to partition, since, instead of giving the cotenant his share in one parcel by a single partition, it might result in requiring him to have several partitions, and to take his share in as many distinct parcels. But there are authorities, also, perhaps as numerous, which hold that a conveyance by one tenant in common is good as against his cotenant, provided effect can be given to it without prejudice to the rights of the cotenant, and this is the doctrine recognized by this court in Crocker v.Tiffany, 9 R.I. 505, 512. Cessante ratione legis, cessat ipsalex. If effect would be given to a conveyance by one tenant in common of his interest in a specific portion of the common property, when it can be done without prejudice to the rights of the cotenant, there would seem to be no good reason why, if the common estate is one of which partition can only be made by sale, we should not give effect to the conveyance, since in such case, the partition being not of the land, but of the proceeds of the sale, no injury can result to the cotenant, who, in the division of the proceeds, would receive his full share of the money. We, therefore, so hold.

We are of the opinion that partition should be made by a sale of the premises, which contain, according to the plat submitted, two thousand four hundred forty-six square feet; and that the proceeds of sale, after deducting the costs and expenses of partition, should be divided into two parts, the first of which shall contain as many two thousand four hundred forty-sixths as there are square feet in the portion of the premises conveyed by the deed in question, and the second of which shall contain the residue of such proceeds.

That the first of said parts should be distributed and paid as follows: —

To Susan C. Clarke, mortgagee, so far as may be required for the payment of the mortgage held by her, eighty-four one hundred and eightieths (84/180), and the residue, if any, of said eighty-four one hundred and eightieths (84/180), to the said Patrick Horgan.

To the Island Savings Bank, mortgagee, so far as may be required for the payment of the mortgages held by it, ninety-six one hundred and eightieths (96/180), and the residue, if any, of said ninety-six one hundred and eightieths (96/180), as follows: To the said Charles Bickerton, eighty-one one hundred and eightieths (81/180); to the said Louisa M. Bickerton, fifteen one hundred and eightieths (15/180).

That the second of said parts should be distributed and paid as follows: —

To Susan C. Clarke, mortgagee, so far as may be required for the payment of the residue of the mortgage held by her, if any, after the payment aforesaid, sixty one hundred and eightieths (60/180); and the residue of said sixty one hundred and eightieths (60/180) to the said Patrick Horgan.

To the Island Savings Bank, mortgagee, so far as may be required for the payment of the residue of the mortgages held by it, if any, after the payment aforesaid, one hundred and twenty one hundred and eightieths (120/180), and the residue, if any, as follows: To the said Charles Bickerton, seventy-five one hundred and eightieths (75/180); to the said Louisa M. Bickerton, forty-five one hundred and eightieths (45/180).

If the parties are unable to agree as to the area of the land conveyed by the deed in question, the cause may be referred to a master to ascertain and report the same to the court.

After this opinion had been given, the respondent Bickerton filed a motion for a reargument.