Curtis Inn Inc. v. Pratte., 3661.

• Decision Date: 29 July 1947
• Docket Number: No. 3661.,3661.
• Parties: CURTIS INN, Inc. v. PRATTE.
• Court: New Hampshire Supreme Court

54 A.2d 357

CURTIS INN, Inc.

v.PRATTE.

No. 3661.

Supreme Court of New Hampshire.

July 2, 1947.

Rehearing Denied July 29, 1947.

Transferred from Superior Court, Hillsborough County; Blandin, Judge.

Action by Curtis Inn, Inc., against Alfred Pratte, Jr., for possession of realty. The action was transferred from the Municipal Court of Manchester to the Superior Court when the defendant filed a plea of title. The facts were agreed upon and all questions of law raised by them were reserved and transferred without ruling.

Judgment for plaintiff.

Writ of Summons, for the possession of certain premises occupied by the defendant in the City of Manchester. The action was transferred from the Municipal Court of Manchester to the Superior Court under R.L. c. 413, § 17 when the defendant filed a plea of title.

The facts were agreed upon and all questions of law raised by them were reserved and transferred without ruling by Blandin, C.J. The material facts appear in the opinion.

Thorp & Branch and Myer Saidel and F. W. Branch, all of Manchester, for plaintiff.

Ernest R. D'Amours, of Manchester, for defendant.

JOHNSTON, Justice.

The defendant relies for his right to possession on a certain lease of the said premises executed December 21, 1944 for a term of five years from February 1, 1945. The parties were himself as lessee and Charles H. Barnard, trustee for Margaret M. Curtis Vreeland, as lessor.

By virtue of the wills of her grandmother and of her mother, Margaret M. Curtis Vreeland was life tenant of the above-mentioned premises known as the Curtis Inn property. She was born January 23, 1881 and was childless. Upon her death 7/18 of the property would have descended to the representatives of her grandmother's deceased brothers and sisters living at the time of the life tenant's decease, and 11/18 would have descended to Virginia V. (Hart) Horner, who has two children now living, both minors.

The lease contained the following provision: ‘The lessor reserves unto himself the right to terminate and cancel this lease upon thirty days' written notice to the lessee if at any time during the term of this lease the property be sold by the lessor.’ Notice of termination purporting to be under this provision was given the defendant March 1, 1946 by Charles H. Barnard, trustee.

January 23, 1946 the life tenant and all remaindermen that were sui juris joined in filing a petition for partition of the Curtis Inn property under the provisions of chapter 410 of the Revised Laws. A guardian ad litem was appointed by the Court to represent any unborn issue of the life tenant as well as any minors and any unborn or unknown representatives of the deceased brothers and sisters of the grandmother.

The petition recited that subject to the approval of the court, ‘your petitioners have received and accepted an offer of Sixty Thousand Dollars ($60,000) for the real estate described in this petition, known as the Curtis Inn, and a down payment of Fifteen Hundred Dollars ($1,500) has been made; * * *.’

March 8, 1946, ‘it appearing that all parties thereto consent to the granting of the prayer thereof and to the entry of this decree,’ the Court decreed that the real estate be sold in accordance with the prayer and that the accepted offer be approved. It was provided in the decree that the deed from the commissioner should be made subject to any leases between any tenant and the trustees of the Margaret C. Vreeland trust estate.

The new owners gave the defendant a notice to quit dated March 27, 1946, to take effect May 1, 1946.

The defendant claims that the partition proceeding is without effect so far as he is concerned because he was not made a party. This is not correct. The petitioners at their election may or may not make a tenant for years a party. ‘And the petitioner may, at his election, make a tenant for life or for years, * * * a petitionee in the action.’ R.L. c. 410, § 1. In the present case the decree of the court was that the deed of the commissioner be made subject to the lease of the defendant.

The partition prayed for and decreed was among remaindermen and accordingly does not offend the principle of Brierley v. Brierley, 81 N.H. 133, 134, 124 A. 311, 312, that the statute ‘contemplated partition only as between those holding with others estates of the same class or duration, * * *.’ The sale made was not under the authority of R.L. c. 259, § 28, as suggested by the...