Field v. Leiter
| Decision Date | 10 June 1907 |
| Citation | 90 P. 378,16 Wyo. 1 |
| Parties | FIELD ET AL. v. LEITER ET AL |
| Court | Wyoming Supreme Court |
Rehearing Denied December 7, 1907, Reported at: 16 Wyo. 1 at 56.
ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.
Action for partition. The material facts are stated in the opinion.
Affirmed.
Burke & Clark, Samuel T. Corn and Henry W. Magee, for plaintiffs in error.
The examination by the commissioners of the lands partioned, made by merely driving over the lands when they were covered with snow, was entirely inadequate. (R. S. 1899, Sec. 4086.) The failure of the plaintiffs below to accept one of the offers of defendants is conclusive evidence that they are unwilling to stand upon their opinion as to values, and that an inequitable partition has been made. When gross inequality of a partition is proven, as in this case, the court should set it aside upon the refusal of an equitable offer made by the dissatisfied party. Such offers are proper and pertinent upon the question of the justness of the action of the commissioners. (Moore v. Williamson, 73 Am. Dec 93; Kiebel v. Leick (Ill.), 73 N.E. 187; Cockrell v. Coleman's Adm., 55 Ala. 583; Richards v. Ruddy, 83 P. 606; R. S. 1899, Sec. 4794.) Inequality in the partition is good ground for vacating the report of commissioners. (2 Dan. Ch. Pr., 1130; Riggs v. Dickinson, 2 Scam., 438; Gouch v. Green, 102 Ill. 507; Holland v. Stout, 22 Ind. 488; Miller v. Rouse, 2 O. Dec., 358; R. Co. v. Houghton (Mich.), 18 N.W. 788; Klingensmith's Est., 130 Pa. St. 521.)
This is a civil action under the code, and involving as it does the equitable rights of the parties in interest, it is in effect a suit in equity, governed by the equitable rules applicable to the facts of the case, and it is not a purely statutory proceeding, or a special proceeding under the statute. (Corwine v. Mace, 36 Ohio St. 125; Lindsay v. Zanoni, 6 O. C. C., 477; Chin v. Trustees, 32 Ohio St. 236; McRoberts v. Lockwood, 49 Ohio St. 374; English et al. v. Monypany, 6 O. C. C., 562; Stone v. Doster, 7 O. C. C., 10; Morgan v. Stayley, 11 O., 389; Perry v. Richardson, 27 Ohio St. 119; Swihart v. Swihart, 7 O. C. C., 342; Hogg v. Beerman, 41 Ohio St. 94; Cory v. Lamb, 43 Ohio St. 390.)
Where the proceeding is purely statutory it is held that only parties in possession or entitled thereto could demand partition, in accordance with the English authorities. (Tabler v. Wiseman, 2 Ohio St. 208; Younges v. Heffner, 36 Ohio St. 237; I Wash. Real Prop., 447-448; Mussey v. Sanborn, 15 Mass. 155; Freeman on Partition, pp. 579 to 584; Wilkinson v. Stuart, 74 Ala. 205; West v. West, 90 Ala. 461; Merritt v. Hughes (W. Va.), 15 S.E. 56.) But since it has become a civil action the entire title may be partitioned, provided all parties in interest are made parties. (Lindsay v. Zanoni, supra; Hogg v. Beerman, supra.) The refusal of the court to adjudicate the rights of all parties necessarily involved, and to admit the cestuis que trust as parties, was, therefore, in direct violation not only of the general rule, but of the theory of our statutes.
The executors of the Leiter will being in possession, the plaintiffs, as trustees and devisees, were neither tenants in common not entitled to possession. They were, therefore, not proper parties plaintiff. (R. S. 1899, Secs. 4081, 4084; Morrison v. Bank (Ill.), 72 N.E. 1112; Smith v. Pratt, 13 O., 551; Serena v. Moore (N. J.), 60 A. 953; 21 Ency. L., 1151; Honeywell v. Taylor, 6 Cush., 472; Conter v. Herschel, 24 Nev. 152; Tabler v. Wiseman, 2 Ohio St. 209; Sevens v. Enders, 13 N.J.L. 271.) The provisions of the probate code refer only to partition among heirs and do not apply to this action. It is no answer to this contention that Field, trustee, and Pratt consented by their answers that partition might be made, for the only decree possible under our statute is one putting the petitioner in possession in severalty of lands of which they were in possession, or entitled to possession, in common. A decree divesting the executors of the possession and conferring it upon the trustees is in violation of law, and consent cannot confer jurisdiction upon the court to do a thing contrary to law.
The daughters of Pratt were parties in interest, and as such necessary parties. As holders of a vested future estate or remainder they were entitled to be made parties. (Campbell v. Stokes (N. Y.), 36 N.E. 811; Miller v. Wright (N. Y.), 16 N.E. 205; Badgett v. Keeting, 31 Ark. 400.)
Vesting title and vesting possession are two distinct matters. A remainder is vested (of title) if the event upon which its passage depends were to happen there would be a vesting of possession in the remainderman. But if the vesting of the remainder is uncertain for want or uncertainty of a remainderman, the remainder is said to be contingent. That is, it is the uncertainty of the right were the event ending the life estate to occur and not an uncertainty because of a possible revocation of the will or deed, that makes the remainder contingent, nor is it the uncertainty as to who all may be the remaindermen or recipients of possession upon the termination of the life estate, it being sufficient to make a vested remainder that at the time the instrument is called in question there exists (in esse) a remainderman, for then, under such condition, the remainder is said to be vested. The children of Pratt were "persons interested." (Campbell v. Purdy, 5 Redf., 434; Ormsby v. Ottman, 85 F. 493; Sweatman v. Dean (Miss.), 38 So. 231.)
The objection was timely made as to the defect of parties defendant.
The entire lands of the partnership, including those held by lease, should have been included in and partitioned in this proceeding. The fact that Mr. Irvine accompanied the commission at the time they viewed the land, and that the report of the commission was prepared by counsel for defendants in error, no one representing the exceptors being present, invalidates the proceeding. (Gage v. Gage (N. H.), 14 A. 869; McLaughlin v. Judge (Mich.), 23 N.W. 472; Paul v. Detroit, 32 Mich. 117; Goch v. Green, 102 Ill. 507; Simpson v. Simpson (Mich.), 26 N.W. 287; Walmsley v. Mill Creek (W. Va.), 49 S.E. 141.)
A report of a commission in partition should be sufficiently in detail and so set forth the facts upon which the commission have acted, as to show to the court that the law, both in letter and spirit, has been complied with, that the court may know that the partition is equal, equitable and just as between the parties in quantity and value, for it is only such a partition that the court ought to or can legally confirm, and this knowledge should come to the court officially, as the official knowledge and action of its commission, and not by and through partisan affidavits in subsequent proceedings, prepared by skillful and prejudiced counsel. The report in this case fails to set forth the necessary facts and should be set aside on that ground.
The refusal of the court to make any findings as to the interest of the daughters of Pratt, who held the remainder estate, was erroneous. It is the well known office of a court of equity...
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Field v. Leiter
...1 FIELD ET AL. v. LEITER ET AL Supreme Court of WyomingDecember 7, 1907 16 Wyo. 1 at 56. Original Opinion of June 10, 1907, Reported at: 16 Wyo. 1. Rehearing POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit. OPINION ON PETITION FOR REHEARING. POTTER, CHIEF JUSTICE. Upon the......