Kelley v. Madden

Phelps, J. The petitioners in this case ask for either the partition or sale of undivided land, but it is found that a partition can conveniently be made and will better promote the interest of the parties than a sale, and therefore the only question to be determined relates to the principle on which partition shall be made. It appears from the report of the committee that the land asked to be aparted was conveyed to the respondent and Rosa Kelley, then Rosa Madden, in 1853, and that the legal title was jointly and equally vested in them; that valuable improvements have since from time to time been made upon it, and that until recently the parties have jointly occupied the premises, making a common stock of their labor and earnings and keeping no account of their services or expenses. The respondent paid much more than one half of the sum actually applied as purchase money, but it is found that the value of the petitioner, Rosa Kelley’s, services, with the money she has contributed, is more than equal to one half of the entire cost of [280] the land with all the improvements. From the fact that no accounts were kept between the parties, and no understanding at any time' existed between them that they were to or did' own the property otherwise than in equal interests, we think it was their intention to apply their joint services, and their means as they should accrue, to the execution of a common object, — to carry on, improve, and enjoy the premises as common and equal proprietors for the purpose of a common home. Indeed, it is found .that from 1856 to 1871, the income and profits from the land, and the earnings of the respondent, constituted a common fund from which the family were supported, interest and taxes paid, and all improvements made. . The law undoubtedly contemplates an equitable partition according to.real ownership rather than according to precise legal interest, but where the measure of legal interest is clearly defined, and the facts are such as to render the equitable proportions of the parties entirely uncertain, wo know of no rule of division so satisfactory and so free from danger of working injustice as that which follows the legal title of the. parties. Whether upon a strict accounting one would be found considerably in arrear and indebted to the other, we cannot from the facts which are disclosed with any certainty determine, but if so the value of the property is adequate security, or may be made so to the party in whose favor the balance would be found; and while under the circumstances of the case an accounting prior to a partition, and an order for partition equitably made on the result of such accounting, would be most satisfactory and possibly more strictly just, yet- we apprehend no serious difficulty -will be experienced in the attempt to obtain a subsequent reasonable and fair adjustment of their respective claims. We advise the Superior Court to order an equal, partition.' In this 'opinion the ether judges concurred.