A. C. Blanchard v. John A. Cross

• Decision Date: 06 February 1924
• Parties: A. C. BLANCHARD ET AL. v. JOHN A. CROSS
• Court: Vermont Supreme Court

123 A. 382

97 Vt. 370

A. C. BLANCHARD ET AL. v. JOHN A. CROSS

Supreme Court of Vermont

February 6, 1924

January Term, 1924.

PETITION for partition. Heard by the court, at the March Term, 1923, Washington County, Chase, J., presiding. Report of the commission recommending sale of the property and division of the proceeds was accepted and judgment rendered accordingly. The defendant excepted. The opinion states the case.

Judgment affirmed, stay vacated, and cause remanded for such farther proceedings as may be necessary.

Earle R. Davis and J. Ward Carver for the petitioners.

S Hollister Jackson and Edward H. Deavitt for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

This is a petition for the partition of certain granite lands in the town of Barre. It alleges that the parties are equal owners in common of the lands described, and prays for the partition thereof; or, in case it be found that the premises are impartible, that they be assigned or sold pursuant to the statute in such case made and provided. The county court awarded partition and appointed a commission, which after hearing, reported that the land could not be divided without great inconvenience to the parties interested, and that none of the owners would take an assignment thereof and make payment therefor. This report was excepted to by the defendant, but on hearing, the court below overruled the exceptions, accepted the report, and ordered a sale of the property and a division of the proceeds. The defendant excepted.

The first exception to the report as briefed by the defendant is predicated upon the exclusion of the testimony of Edward H. Deavitt. By this witness, the defendant offered to show that the Wetmore & Morse Granite Company owned a controlling interest in the Barre Medium Granite Company, which owned land adjoining the land in question; that the first named company owned the Straiton Quarry, which also adjoined the land in question; that the first named company, at some time before these proceedings were commenced, entered into a written contract with the defendant which amounted to a purchase of his interest in the land in question, to be paid for as therein provided; and that, since the hearing before the commissioner began, the first named company had purchased and acquired the interest of the plaintiff, Sargent, in the land in question. The offer was excluded and an exception saved.

That the judgment awarding partition is final so far as the respective interests of the parties in the property and the right to partition are concerned is established. Gourley v. Woodbury, 43 Vt. 89. But that judgment is so far interlocutory as to leave untouched the question whether the partition shall be by allotment or sale. Roach v. Baker, 130 Ind. 362, 30 N.E. 310; Brown v. Cooper, 98 Iowa 444, 67 N.W. 378, 33 L. R. A. 61, 60 A. S. R. 190.

The right to partition by allotment was a common law right, but the right to partition by sale is purely statutory. Such a statute being an innovation upon the common law ( Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 A. S. R. 918), the law favors a partition in kind rather than by sale; but when the statutory requirements are met by proof, a sale becomes a matter of right (Wilson v. Bogle, 95 Tenn. 290, 32 S.W. 386, 49 A. S. R. 929), though one or another of the owners objects. Wood v. Barnett, 208 Ala. 295, 94 So. 338.

The language used in the statutes of different states varies somewhat, that of our own (G. L. 2167) making "great inconvenience" the test; but the essential consideration is the pecuniary welfare of the owners. See Idema v. Comstock, 131 Wis. 16, 110 N.W. 786, 120 A. S. R. 1027; Heald v. Kennard, 180 Mass. 521, 63 N.E. 4. A sale is not to be ordered on a showing that it will be to the advantage of one of the owners; it must be shown that it will be for the best interests of all the owners. 20 R. C. L. 774; Kluthe v. Hammerquist, 45 S.D. 476, 188 N.W. 749; Croston v. Male, supra. To determine this question, the test, as stated by Chancellor Walworth in Clason v. Clason, 6 Paige Ch. 541, is whether the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person. And this is the rule according to Croston v. Male, supra. Or, as elsewhere stated, whether the value of the share of each owner in case of a partition would be materially less than his share of the money equivalent that can probably be obtained for the whole. R. C. L., supra; Kluthe v. Hammerquist, supra; Idema v. Comstock, supra.

If, then, the offered evidence was admissible, it was because it tended to show that the pecuniary interests of the owners taken together, would not be enhanced by a sale of the property. It had no such tendency. It strongly indicated that the interests of the Wetmore & Morse Granite Co. and those of the Barre Medium Granite Company, neither of which was a party, would be promoted by such a division of the property as would give as Sargent's third and as the defendant's third the land that adjoined their properties. That neither Sargent nor the defendant could gain anything by this is obvious from the fact that they had sold out; and no pretense is made that Blanchard's share would benefit by such a division. The commissioners did not report the facts or evidence on which they based their ultimate finding and the defendant does not complain of this. In these circumstances, we cannot say that the exclusion of the offer was improper or harmful.

One other exception is briefed by the defendant. It relates to the admission of the testimony of Milford W. Sanders, who was allowed to give his opinion that the land in question was worth more as an entire tract, than it would be if divided into three parts of equal value, and to state his reasons for this conclusion. The objection was, not that the witness was not sufficiently qualified to give an opinion, but that this testimony covered the very question to be determined by the commission, and therefore an opinion was not admissible. Attention is called to several of our cases in which this proposition is expressly or substantially laid down. Properly understood, this rule applies only to the ultimate fact to be established by proof, and not to the subordinate facts upon which that is to be predicated. Thus, in a will case, sanity is a question to be passed upon by the jury, it is, however a subordinate fact--the capacity to make a will being the ultimate question to be determined. An expert may give an opinion on the former, but not on the latter. In negligence cases involving the question of a foreign law, the jury must, in certain circumstances, determine what that law is, but the question of liability, which depends upon that and other controverted facts, is the ultimate question. The opinion of an expert is receivable on the former question, but not on the latter. But there is much doubt regarding the accuracy...