Hurley v. O'Neill
| Decision Date | 21 January 1905 |
| Parties | HURLEY v. O'NEILL. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.
Action for partition by Mary Ann Hurley against Patrick O'Neill. From a judgment for plaintiff, defendant appeals. Reversed.
Jas. H Baldwin, for appellant.
Geo. B Dygert, L. J. Hamilton, and F. D. Lingenfelter, for respondent.
This is an appeal from an interlocutory decree rendered in a suit for partition, and from an order overruling a motion for a new trial.
The facts appear to be that the defendant and one Dennis D Sullivan in 1889 purchased a certain tract of land, 100 feet in length and 30 feet in width, in Butte, Mont.; that their titles were obtained from a common source, and, so far as the record title is concerned, they were tenants in common. It also appears that at the time of the purchase the source, territory adjoining the lot was unoccupied, and that they had free access to all parts of the land purchased, by passing over other lands; that it was agreed at the time between defendant and Sullivan that Sullivan should erect a dwelling house on the east end of the lot, and the defendant herein should erect a house on the west end of the lot. Neither party appears to have borne any of the expense occasioned by the construction of these houses, except the one erected by himself. The parties moved into the houses with their families, and occupied the same continuously until 1895, when Sullivan sold his interest in the lot to the plaintiff herein, who, with her husband, took immediate possession of the house erected and occupied by Sullivan. The part of the lot upon which the defendant, O'Neill, had erected his house, proved to be the front end of the lot; and, the adjoining property having become occupied or used, there was no practical means of reaching the rear end of the lot occupied by the grantee of Sullivan, except by passing over that portion of the lot occupied by defendant. A difficulty arose between the parties, and the plaintiff brought this action for partition.
The defense is to the effect that Sullivan and the defendant had, prior to the time of the sale by Sullivan to the plaintiff, orally agreed upon a division of the lot, to wit, that the defendant should occupy the front 50 feet of the lot, on which the house erected by him was located, and that Sullivan should occupy the rear 50 feet of the lot, and that the plaintiff well knew of this agreement at the time she purchased the interest of Sullivan.
The findings of the court are to the effect that the plaintiff had no knowledge of the existence of any oral agreement relative to the division of the lot; that she was entitled to the relief asked for in her complaint; that the premises, and the whole thereof, are so situated that actual partition into distinct parcels cannot be made without great prejudice to both plaintiff and defendant. The court therefore entered an interlocutory decree to the effect that the premises be sold under the direction of a referee appointed for that purpose, and that the referee ascertain if the wife of the defendant had released her dower right in the premises to her husband, and, if she had not, or would not consent to do so, to ascertain what would be a just compensation to pay her for her dower interest. The defendant, on this appeal, urges that the evidence is not sufficient to sustain the findings, that the findings are contrary to the evidence and against law, and that the court could not enter a decree at all, for the reason that the wife of the defendant was an indispensable party to the action.
The burden of showing the existence of an oral agreement respecting the partition of the lot rests upon the defendant, or the party who alleges or relies upon the same. There is no evidence in this record showing that the plaintiff, at the time she purchased the interest of Sullivan, had notice of the existence of any agreement respecting the partition or division of this lot. There was nothing in the occupation of the lot by both the tenants in common, though they resided in separate houses, that was inconsistent with the record title, for, being tenants in common, each had the right of possession. The grantor of plaintiff testifies that there never was any agreement between himself and the defendant respecting as division of the lands, further than it was agreed as to the part of the lot on which each should erect his own house; that, at the time he made the sale to the plaintiff, he told her that she had an interest in the whole lot--the front as well as the back. There is some evidence on the part of the defendant as to statements made by the plaintiff and her husband, who acted as her agent, which would tend to show that shortly after the purchase she had notice that some agreement existed between Sullivan and defendant with reference to a division of the lot. This, however, is disputed.
Each party, it appears, had paid taxes on one-half the lot since its purchase. The facts are not materially different from those presented on the former appeal, where the questions respecting the payment of taxes and survey of the lot putting up stakes, the construction of outbuildings, and erection of fences, etc., were all passed upon, and the court said: "It is apparent that these two items, whether considered separately or together, fall short, in themselves, or being...
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