Billings v. Billings.

• Decision Date: 01 October 1946
• Docket Number: No. 1063.,1063.
• Citation: 49 A.2d 179
• Parties: BILLINGS v. BILLINGS.
• Court: Vermont Supreme Court

49 A.2d 179

BILLINGS

v.BILLINGS.

No. 1063.

Supreme Court of Vermont.

Oct. 1, 1946.

Exceptions from Rutland County Court; Adams, Presiding Judge.

Petition for partition of real estate by Alvah B. Billings against Laura P. Billings. From a judgment ordering petitionee's undivided one-half interest assigned to petitioner, petitionee brings exceptions.

Judgment reversed, and cause remanded with directions.

MOULTON, C. J., and JEFFORDS, J., dissenting.

Lawrence & O'Brien, of Rutland, for plaintiff.

Wayne C. Bosworth, of Middlebury, and Philip M. M. Phelps, of Fair Haven, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

BUTTLES, Justice.

This is a petition for partition of real estate owned by the parties in equal shares as tenants in common. The case has been here before and is reported in 114 Vt. 70, 39 A.2d 748. It was there held that when it appears that the real estate cannot be divided without great inconvenience to the parties and an assignment to one of them is to be made in accordance with P.L. 1977 the designation of the assignee is to be made by the court upon acceptance of the report of the commissioners, but the actual assignment is to be made by the commissioners.

Following remand of the case it was recommitted to the commissioners who, by their third and fourth reports, reported, in effect, that both the petitioner and petitionee were willing to take an assignment of the other's interest, and that $4,000 in cash in thirty days from the final order of the court would be equitable compensation for either to pay to the other for such an assignment. The court accepted these reports, heard evidence as to which party, if either, was entitled to a preference, made findings of fact and rendered judgment ordering that the petitionee's undivided one half interest be assigned to the petitioner who was to pay the sum of $4,000 therefor in the manner specified.

The petitionee's exceptions which are briefed question the correctness of the procedure followed, as applied to a case of conflicting elections by two or more coowners to take an assignment of impartible property for the sum and on the terms as to time and manner of payment which the commissioners judge to be equitable. No express provision for such a case is made by our statute, the applicable sections of which are: Sec. 1977. ‘When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.’ Sec. 1978. ‘In case one of the parties interested will not take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale.’

The fundamental rule of statutory construction is that the intention of the Legislature must be ascertained and given effect. Billings v. Billings, 114 Vt. 70, 72, 39 A.2d 748; In re Walker Trust Estate, 112 Vt. 148, 151, 22 A.2d 183; Clifford v. West Hartford Creamery Co., 103 Vt. 229, 252, 153 A. 205. It is always presumed in regard to a statute that no unjust or unreasonable result was intended by the Legislature. State v. Reynolds, 109 Vt. 308, 310, 1 A.2d 730; Brackett v. Chamberlain, 115 Me. 335, 98 A. 933, 935. The true rule for the construction of statutes is to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law, and thus ascertain the true meaning of the Legislature, though the meaning so ascertained conflicts with the literal sense of the words. Town of Ryegate v. Wardsboro, 30 Vt. 746, 749; Baker v. Jacobs, 64 Vt. 197, 200, 23 A. 588; Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 340, 60 A. 137, 70 L.R.A. 930; In re Fulham's Estate, 96 Vt. 308, 317, 119 A. 433; Brammall v. LaRose, 105 Vt. 345, 349, 165 A. 916.

In Vermont a petition for partition, being, according to the common law and equity practice, neither an action at law nor a suit in chancery, is a special proceeding under the law. Blanchard v. Cross, 97 Vt. 370, 376, 123 A. 382. Such proceedings are more or less equitable in nature. Watkins v. Merrihew, 102 Vt. 190, 194, 147 A. 345.

Prior to the enactment of No. 54 of 1902 our statutes regarding partition in probate courts provided that preference should be given to males over females and to the elder over the younger in making assignment of an impartible estate, but ever since then the same proceedings have been required for assignment or sale in probate as in county court proceedings for partition. In proceedings by petition in county court no preference of any kind is or ever has been directed or authorized by the statute. The maxim ‘Equality is equity’ must here apply. In a case where there are but two parties and each of them desires to have allotted to him the whole subject the court cannot arbitrarily decide that one shall have the subject to the exclusion of the other. Corrothers v. Jolliffe, 32 W.Va. 562, 564, 9 S.E. 889, 25 Am.St.Rep. 836.

The question what should be done in such a case is new in Vermont and few decisions which help to solve it are to be found in those states which provide for an assignment as an alternative to actual division of the property.

Harbin v. Harde, 141 Pa.Super. 1, 14 A.2d 866, was a proceeding in equity for partition. Both parties elected to take the land at the master's valuation. The master thereupon called for sealed bids from the parties and awarded the land to the higher bidder. On appeal a claim for preference was made because of kinship, and also the claim that the court rather than the master should make the award. The appellate court sustained the procedure below, holding that it conformed to the express provisions of the Pennsylvania statute.

Corrothers v. Jolliffe, 32 W.Va. 562, 9 S.E. 889, 25 Am.St.Rep. 836, was also a suit in equity for partition. The plaintiff owned an undivided one-sixth and the defendant an undivided five-sixths of the property which was admitted to be impartible. Each party indicated his willingness to accept an assignment of the other's share. The court below awarded the plaintiff's one-sixth interest to the defendant at the commissioner's valuation, although it appeared at the final hearing that this was less than the proportional amount that the plaintiff was willing to pay for the defendant's interest, and less than other parties would pay for the plaintiff's interest. The West Virginia statute as construed by the court gave the lower court the alternative, depending upon the circumstances, either to allot the entire subject to a party who would pay for it or to order the whole subject to be sold. The appellate court says that where more than one party asks the court to allot the whole subject to him, and he is willing and able to pay for the other interests, both reason and justice require the court, in the exercise of its powers to allot the whole to the party who offers the largest proportional sum for the whole or the interests of other parties. It was held, however, that under the circumstances disclosed a sale at auction should have been ordered.

Darling v. Darling, 85 Ohio St. 27, 28, 96 N.E. 939, 941, was a partition proceeding commenced by petition under a statute very similar to our own. There were conflicting elections to take the property at its appraised value by two of the seven co-tenants, and the trial court's order of a public sale was affirmed, mainly on the ground that both elections were made out of time, but the court said that the ‘right to elect did not abide alone in Willard, but any one or more of the co-tenants had the same right. They stood as equals in relation to that right; and, if two or more had elected to take this tract of land at the appraised value, a public sale of the same would have been required.’

The Ohio statute, under which the Darling case was decided, provides that upon election to take by one or more of the parties, the property shall be assigned to him or them etc., and also provides for payment by him or them. In Burch v. Brooks, 24 O.C.D. 605, 606, affirmed without opinion in 82 Ohio St. 441, 92 N.E. 1110, it is held that by this use of plurals the Legislature ‘either contemplated the individual election by one of the tenants in common, or the joint election by one (sic) or more, but it did not contemplate the election by one to take the whole of the property for himself and the election by another to do the same, because of course that sort of proceeding would defeat itself. It would be impossible to carry it out, and under such circumstances the courts have, I think, uniformly adopted the procedure of ordering a sale, refusing all the conflicting elections.’ It is also said by the court that the statute is a blank as to what proceedings shall be taken in a case of conflicting elections.

We endorse the reasoning of the Ohio courts and hold that the words in P.L. 1978 ‘in case one of the parties interested will not take’ etc. contemplate an order of sale except when one of the parties, for himself individually, or for himself and others jointly, will take an assignment and pay the required sum on the required terms. The exception does not include a case where two or more of the owners, each for himself, elect to take an assignment for the sum and on the terms judged by the commissioners to be equitable. An assignment such as the Legislature must have intended, one that would be in accordance with the principles of equity as between the parties, becomes impossible, and if the report of the commissioners is accepted by the...