Avery v. Payne

Christiancy J.: [After remarking upon the great and unnecessary length of the record, and the large amount of irrelevant testimony taken on both sides.] Voluminous and excursive as the evidence is, it fails to throw any light upon some of the more important questions presented by the pleadings, and upon several others it is too slight to lead to a satisfactory conclusion. What were, in fact, all the features or provisions of the real agreement between the parties upon which the conveyance was to be made to Avery, and what was the real nature of some of the subsequent- transactions between them in reference to the. correction of the bond, &c., is left by the evidence in painful uncertainty. The knowledge of the facts, except as they appear by the written evidence, seems to have been mainly confined to the parties themselves. Answers under oath were waived, and the testimony — 547 — was taken prior to the act of 1861, allowing parties to be witnesses. A few hours examination of the parties would doubtless have thrown more light upon these cases than all the testimony which has been taken. It is however clear from the pleadings and proofs, that Avery paid no pecuniary consideration at the time for the undivided half of the lands conveyed to him by Payne and wife, which he asks to have set off to him in partition, nor did he agree to pay any pecuniary consideration therefor, except from the proceeds of the sales to be made of the conveyed lands; that the price agreed to be paid from such proceeds was twenty-five thousand dollars; that the lands thus sold were, with a good title, worth some ten thousand dollars more than this sum; that Avery did not, under the conveyance which was executed to him, assume the risk of the title which was then in litigation, as that conveyance was by warranty, and it does not appear that Payne was not perfectly able to respond in damages if the title had failed (and we judge from the evidence his means were ample for this purpose). Whatever other services Avery was to render, or whatever other consideration Payne was to receive, it is clear that, as a part and a very material part of the consideration, without which Payne would not have consented to make the conveyance, Avery was by the agreement to take charge of and manage the common property after the conveyance (the half still belonging to Payne as well as that to be conveyed), and to make sales thereof without charge; that Payne would not be bound to assent to any sale which he might deem disadvantageous, though requested by Avery; that Payne relied, and, by the agreement between them, had a right to rely upon the common interest which Avery would have with him as a tenant in common, and the control he, Payne, would still retain over the sales (when called upon to deed) as his security for Avery’s efficiency and fidelity in the management and sale of the property. We — 548 — think it also very clear that this common interest, and the power the arrangement would give Payne over the sales to be made of the common property, constituted a valuable security in his hands, as it would enable him to exercise to some extent an influence to prevent improvident sales of Avery’s half, from the proceeds of which he was to receive his twenty-five thousand dollars purchase money. There is nothing in the evidence tending to show that Payne would have consented to make the conveyance without the security thus afforded; in other words, we can see nothing in the evidence to induce the belief that he would, have been willing to have sold to Avery one half in value of the property in severalty, for the same consideration in other respects. That he would not for this consideration have thus sold in severalty, nor, if he supposed there was to be a partition, before the purchase money at least was paid, we think abundantly appears from the evidence. To grant a partition, and allow Avery’s portion to be set off in severalty before the purchase - price is paid, while a large portion of the property remains unsold .¡•which, for aught that appears, Payne is still anxious to sell), and before Payne has by his own default or otherwise released Avery from his obligations in this respect, would be to deprive Payne of a large portion of the consideration he was to receive for the land. The conveyance was ¿therefore made to Avery under and in pursuance of an agreement which was inconsistent with a present right of partition 'on his part; and no partition can bo granted in the present aspect of the case, unless the statute — Comp. L. § 4616 — is imperative in such a case, or unless Payne, by his refusal to carry out his part of the agreement, or by some clear .default on his part, deprived Avery of some portion of his rights under the agreement, or prevented his performance of it. We think the statute can only be considered imperative — 549 — in its application to ordinary joint tenancies or tenancies in common, where the right of partition is left to result, as an ordinary legal incident- of such tenancy; and that it was never intended to interfere with contracts between such tenants modifying or limiting this otherwise incidental Tight; nor to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards. We have not been able to discover any satisfactory evidence of Payne’s refusal to perform his portion of the contract, nor of any default on his part which would relieve Avery from the obligation to perform, or prevent his performance. It is true that, after a certain time, the relations of the parties ceased to be friendly, and they seem mutually to have ceased approaching each other upon business matters, and sales ceased to be made: But it does not appear that Payne ever wrongfully refused upon request to join in any proper sale, negotiated by Avery. And for aught that appears Avery might have continued to make sales of the common property as before, until the whole was disposed of. On the part of Avery, however, it was strongly urged upon the argument) that the three mortgages executed by Payne, to Crane and to Youngs in November, 1858, and to Newton in May, 1859 (sometime after all sales had ceased to be made), operated as a breach of the spirit of the agreement between the parties, and put it out of the power of Avery to make sales, as he otherwise might have done: and that he can not therefore derive the full benefit of his purchase without a partition. However well founded this position might be under certain circumstances, there are several conclusive reasons why the giving of the mortgages can not be allowed to confer a right to partition in the present case. JFirsi. The complainant in the original bill has not placed his claim to a partition on any such ground, but — 550 — relies wholly upon the incidental right springing from a tenancy in common. To have enabled him to claim a partition on the ground now suggested, he should have set forth or relied upon the agreement in his bill, and alleged the mortgages and their effect in preventing or embarassing sales, as a breach of the agreement by Payne; perhaps also a request to Payne to procure the discharge of the mortgages. The question, whether the mortgages had in fact operated to prevent or retard sales, would then have been in issue, and might have been decided by proof. But no such question has been put in issue, and no such proof was therefore admissible. When Payne’s answer was put in setting up the agreement, the bill should have been so amended as to present this point, if intended to be relied upon. But Second. Had the bill contained these allegations, there is no proof to sustain them, or to show that the mortgages, in fact, proved detrimental to Avery in any respect. And Third. While the Court can see that it would depend upon circumstances whether the mortgages would or would not operate to prevent or embarrass sales, they can not without proof judicially know what were the circumstances during the period in question, and can not therefore judicially say whether the mortgages did, in fact, thus operate. There may have been no opportunity during that period to make sales, had there been no mortgages; and purchasers may have been found willing to purchase at the full value of the property, assuming the mortgages as part of the purchase money. Partition should therefore be denied. As to the cross bill, upon a full examination of the evidence, we are satisfied that Payne has failed to prove the original contract to be such as he has alleged in his bill, and that he has not, by his proof, shown sufficient — 551 — ground for cancelling or reforming the contract, or any of the subsequent papers. The decree of partition granted in the Court below must be reversed, and both the original and the cross bill must be dismissed without prejudice. Though Payne succeeds upon the appeal, yet as he fails upon his cross bill which called for independent, affirmative relief, and has introduced the larger share of irrelevant testimony, and is more responsible for the useless length of the record, it is but just that he should sustain a portion of the costs. Each party must therefore pay his own costs of these causes in the Court' below, and Payne must recover his costs on the appeal. The other Justices concurred.