Johnson v. Olmsted

Pardee, J. No person can be compelled to remain the owner with another of real estate, not even if he become such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afforded to every owner with another relief by way of partition, and this regardless alike of the difficulties attending separation and the consequences to his associate. Rights to the use of running water, rights to dig ores, have been declared to be subject to this law. But inasmuch as it might sometimes happen that by partition the property would be practically sacrificed, the statute has opened a way of escape from such a result. It permits a court of equity to order a sale when in its opinion a sale will better promote the interest of the owners. Therefore since its enactment there have been two modes of relief within the power of the court—partition and sale. Every owner with another is entitled to separate ownership by one of these; by partition first and always, if that is possible; if it is not, then by sale; every petitioner for a sale assuming the burden of proving partition impossible; and if upon such petition the impossibility of partition is proven, the court is as much bound to order a sale as it would have been to order a partition upon a prayer for it and upon proof that it could be conveniently and equitably made. If upon a petition for a sale it is proven both that partition is impossible and that a sale would result in a [518] diminution of income, the petitioner is not for that reason to be shut up to continued joint ownership; he must have leave to go out of the possible door notwithstanding that diminution; upon such petition the most that can be insisted upon by plaintiff or defendant is that the undeniable right to severalty in ownership shall be secured by the least injurious of the two specified modes. The statute has been thus interpreted by this court. In Spencer v. Waterman, 36 Conn., 342, it is said that it permits a sale only “ in cases where the interest of all parties concerned would be more promoted by a sale than by a division.” In Ford v. Kirk, 41 Conn., 9, it is said that by the express terms of the statute a sale is warranted only when it. “ will better promote the interest of the parties in interest, that is, will better promote it than a partition.” And a former statute permitted a sale “ whenever, in the opinion of the court, a sale will better promote the interest of all parties than a partition, and whenever in the opinion of the court the property cannot be conveniently occupied in common.” It is claimed that this statute restricted the power of -the court to order a sale to cases where the property could not be beneficially used in joint ownership. But in Richardson v. Monson, 23 Conn., 94, it is said that it authorized a sale “ whenever partition cannot conveniently be made in any other way. * * And indeed, by the principles of the common law, recognized by the statute 31 and 32 Henry VIII., this right of partition enters into the very nature of the title of estates holden in common and is inseparable from them. The only question is how can it best be made ? The statute giving the power of sale introduces as we think no new principle; it provides only for an emergency, when a division cannot well be made in any other way.” The fact that one of the defendants is tenant by the curtesy initiate is no bar to an order of sale; he and his wife are made parties and are within the jurisdiction of the court; in them together is the whole of an undivided part, a well-defined and tangible estate; clearly within the reason [519] and the language of our all-inclusive statute. And, as the money is to stand for the land, the court can make all necessary orders for the protection of his rights, if he should ever become tenant by the curtesy consummate, as well as for the protection of hers. There is no error in the judgment complained of. In this opinion the other judges concurred.