Delfino v. Vealencis

• Decision Date: 22 July 1980
• Citation: 181 Conn. 533,436 A.2d 27
• Parties: Angelo DELFINO et al. v. Helen C. VEALENCIS.
• Court: Connecticut Supreme Court

Page 27

436 A.2d 27

181 Conn. 533

Angelo DELFINO et al. v. Helen C. VEALENCIS.

Supreme Court of Connecticut.

Argued March 12, 1980.

Decided July 22, 1980.

John R. Caruso, Farmington, with whom, on the brief, was Susan M. Zajac, for appellant (defendant).

Maxwell Heiman, Bristol, with whom, on the brief, were Theodore M. Donovan and William J. Tracy, Jr., Bristol, for appellees (plaintiffs).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The central issue in this appeal is whether the Superior Court properly ordered the sale, pursuant to General Statutes § 52-500, ¹ of property owned by the plaintiffs and the defendant as tenants in common.

The plaintiffs, Angelo and William Delfino, and the defendant, Helen C. Vealencis, own, as tenants in common, real property located in Bristol, Connecticut. The property consists of an approximately 20.5 acre parcel of land and the dwelling of the defendant thereon. ² The plaintiffs own an undivided 99/144 interest in the property, and the defendant owns a 45/144 interest. The defendant occupies the dwelling and a portion of the land, from which she operates a rubbish and garbage removal business. ³ Apparently, none of the parties is in actual possession of the remainder of the property. The plaintiffs, one of whom is a residential developer, propose to develop the property, upon partition, into forty-five residential building lots.

In 1978, the plaintiffs brought an action in the trial court seeking a partition of the property by sale with a division of the proceeds according to the parties' respective interests. ⁴ The defendant moved for a judgment of in-kind partition ⁵ and the appointment of a committee to conduct said partition. The trial court, after a hearing, concluded that a partition in kind could not be had without "material injury" to the respective rights of the parties, and therefore ordered that the property be sold at auction by a committee and that the proceeds be paid into the court for distribution to the parties.

On appeal, the defendant claims essentially that the trial court's conclusion that the parties' interests would best be served by a partition by sale is not supported by the findings of subordinate facts, and that the court improperly considered certain factors in arriving at that conclusion. In addition, the defendant directs a claim of error to the court's failure to include in its findings of fact a paragraph of her draft findings.

General Statutes § 52-495 ⁶ authorizes courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common, and to appoint a committee for that purpose. ⁷ When, however, in the opinion of the court a sale of the jointly owned property "will better promote the interests of the owners," the court may order such a sale under § 52-500. ⁸ See Kaiser v. Second National Bank, 123 Conn. 248, 256, 193 A. 761 (1937); Johnson v. Olmsted, 49 Conn. 509, 517 (1882).

It has long been the policy of this court, as well as other courts, to favor a partition in kind over a partition by sale. See Harrison v. International Silver Co., 78 Conn. 417, 420, 62 A. 342 (1905); Johnson v. Olmsted, supra; 2 American Law of Property, Partition § 6.26, pp. 112-14; 4A Powell, Real Property P 612, p. 650; 59 Am.Jur.2d, Partition § 118, pp. 864-65; 68 C.J.S., Partition § 125. The first Connecticut statute that provided for an absolute right to partition by physical division was enacted in 1720; Statutes, 1796, p. 258; the substance of which remains virtually unchanged today. ⁹ Due to the possible impracticality of actual division, this state, like others, expanded the right to partition to allow a partition by sale under certain circumstances. ¹⁰ See Penfield v. Jarvis, 175 Conn. 463, 470-71, 399 A.2d 1280 (1978); see also Restatement, 2 Property c. 11, pp. 658-61. The early decisions of this court that considered the partition-by-sale statute emphasized that "(t)he statute giving the power of sale introduces ... no new principles; it provides only for an emergency, when a division cannot be well made, in any other way. The Earl of Clarendon v. Hornby, 1 P.Wms., 446.4 Kent's Com., 365." Richardson v. Monson, 23 Conn. 94, 97 (1854); see Penfield v. Jarvis, supra, 471, 399 A.2d 1280; Harrison v. International Silver Co., 78 Conn. 417, 420, 62 A. 342 (1905); Vail v. Hammond, 60 Conn. 374, 379, 22 A. 954 (1891). The court later expressed its reason for preferring partition in kind when it stated: "(A) sale of one's property without his consent is an extreme exercise of power warranted only in clear cases." Ford v. Kirk, 41 Conn. 9, 12 (1874). See also 59 Am.Jur.2d, Partition § 118, p. 865. Although under General Statutes § 52-500 a court is no longer required to order a partition in kind even in cases of extreme difficulty or hardship; see Scovil v. Kennedy, 14 Conn. 349, 360-61 (1841); it is clear that a partition by sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; Johnson v. Olmsted, supra; and (2) the interests of the owners would better be promoted by a partition by sale. Kaiser v. Second National Bank, supra; see Gold v. Rosenfeld, Conn. (41 Conn.L.J., No. 4, p. 18) (1979). Since our law has for many years presumed that a partition in kind would be in the best interests of the owners, the burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests. Accord, 4A Powell, Real Property P 612, p. 651; 59 Am.Jur.2d, Partition § 118, p. 865.

The defendant claims in effect that the trial court's conclusion that the rights of the parties would best be promoted by a judicial sale is not supported by the findings of subordinate facts. We agree.

Under the test set out above, the court must first consider the practicability of physically partitioning the property in question. The trial court concluded that due to the situation and location of the parcel of land, the size and area of the property, the physical structure and appurtenances on the property, and other factors, ¹¹ a physical partition of the property would not be feasible. An examination of the subordinate findings of facts and the exhibits, however, demonstrates that the court erred in this respect.

It is undisputed that the property in question consists of one 20.5 acre parcel, basically rectangular in shape, and one dwelling, located at the extreme western end of the property. Two roads, Dino Road and Lucien Court, abut the property and another, Birch Street, provides access through use of a right-of-way. Unlike cases where there are numerous fractional owners of the property to be partitioned, and the practicability of a physical division is therefore drastically reduced; see, e. g., Penfield v. Jarvis, 175 Conn. 463, 464-65, 399 A.2d 1280 (1978); Lyon v. Wilcox, 98 Conn. 393, 394-95, 119 A. 361 (1923); Candee v. Candee, 87 Conn. 85, 89-90, 86 A. 758 (1913); in this case there are only two competing ownership interests: the plaintiffs' undivided 99/144 interest and the defendant's 45/144 interest. These facts, taken together, do not support the trial court's conclusion that a physical partition of the property would not be "feasible" in this case. Instead, the above facts demonstrate that the opposite is true: a partition in kind clearly would be practicable under the circumstances of this case.

Although a partition in kind is physically practicable, it remains to be considered whether a partition in kind would also promote the best interests of the parties. In order to resolve this issue, the consequences of a partition in kind must be compared with those of a partition by sale.

The trial court concluded that a partition in kind could not be had without great prejudice to the parties since the continuation of the defendant's business would hinder or preclude the development of the plaintiffs' parcel for residential purposes, which the trial court concluded was the highest and best use of the property. The court's concern over the possible adverse economic effect upon the plaintiffs' interest in the event of a partition in kind was based essentially on four findings: (1) approval by the city planning commission for subdivision of the parcel would be difficult to obtain if the defendant continued her garbage hauling business; (2) lots in a residential subdivision might not sell, or might sell at a lower price, if the defendant's business continued; (3) if the defendant were granted the one-acre parcel, ¹² on which her residence is situated and on which her business now operates, three of the lots proposed in the plaintiffs' plan to subdivide the property would have to be consolidated and would be lost; and (4) the proposed extension of one of the neighboring roads would have to be rerouted through one of the proposed building lots if a partition in kind were ordered. The trial court also found that the defendant's use of the portion of the property that she occupies is in violation of existing zoning regulations. The court presumably inferred from this finding that it is not likely that the defendant will be able to continue her rubbish hauling operations from this property in the future. The court also premised its forecast that the planning commission would reject the plaintiffs' subdivision plan for the remainder of the property on the finding that the defendant's use was invalid. These factors basically led the trial court to conclude that the interests of the parties would best be protected if the land were sold as a unified unit for residential subdivision development and the proceeds of such a sale were distributed to the parties.

Before we consider whether these reasons are sufficient as a matter of law to overcome the...