Kenyon v. Kenyon

• Decision Date: 30 December 1953
• Docket Number: No. 2182,2182
• Citation: 81 R.I. 223,101 A.2d 477
• Parties: KENYON et ux. v. KENYON et al. Equity
• Court: Rhode Island Supreme Court

Page 477

101 A.2d 477

81 R.I. 223

KENYON et ux. v. KENYON et al.

Equity No. 2182.

Supreme Court of Rhode Island.

Dec. 30, 1953.

Edward M. Botelle, Westerly, for complainants.

George F. Troy, Edward M. McEntee, Providence, for respondents.

O'CONNELL, Justice.

This bill of complaint, which was filed in the superior court for Washington county, requested a sale of the real estate therein described and a division of the proceeds thereof among the parties according to their respective interests. The respondents filed an answer admitting the allegations contained in the bill and joining in the prayers thereof. Following certain other pleadings, hereinafter referred to, and a hearing thereon, a final decree was entered from which the complainants have prosecuted an appeal to this court.

It appears that upon the bill and original answer a decree of partition prepared by respondents' attorney and signed and consented to by counsel for both parties was entered October 18, 1948. That decree set forth the interests of the parties as stated in the bill of complaint, authorized a sale of the premises, appointed a commissioner to sell the same at public auction to the highest bidder, and further directed him to make a full report thereof to the court. Pursuant to such authority, a commissioner's sale was held on the premises at which a duly licensed auctioneer, employed by the commissioner, struck off the property to respondents' attorney for $13,100, he being the highest bidder. He thereupon paid the required deposit of 10 per cent of the purchase price and signed an agreement approving the terms of sale and agreeing to pay the balance of $11,790 as required thereby.

On September 10, 1949 respondents filed a motion to amend their answer so as to set forth certain equitable claims which, if allowed, would be inconsistent with the terms and provisions of the consent decree of partition previously entered. This motion was supported by an affidavit of respondents' attorney to the effect that at the time he filed the answer in behalf of respondents he knew of such claims, but labored under a mistaken view of the law that they were barred by the statute of limitations, and that he believed the assertion of other equitable claims, which were not so barred but were relatively small in amount, would militate against an amicable agreement for the sale of the premises. The respondents also filed an affidavit to the effect that these claims had not been asserted in the original answer because they relied upon the advice given by their solicitor.

On October 19, 1949 a decree was entered granting respondents' motion to amend and permitting them to file an amended and supplemental answer as requested. The complainants demurred to such answer and stated as grounds therefor that the alleged claims were barred by the statute of limitations, undue delay and laches. After a hearing a rescript was filed overruling complainants' demurrer, and thereafter the commissioner filed his report together with a motion that it be approved. The respondents then moved that the pleadings be closed and the cause assigned for hearing on the merits. They also filed a formal rejoinder and moved that the cause be set down for hearing on the bill of complaint, answer, supplemental answer, replication and rejoinder.

Thereafter respondents filed a petition to reduce the sale price bid at the public auction conducted by the commissioner appointed in the original consent decree. Such petition alleged in substance that at such auction held July 8, 1949 the premises described in the bill of complaint were purchased by respondent Annie B. Kenyon for $13,100, that being the highest amount bid; that the fair market value of the property at the time of sale was $6,000; that the respondent Annie B. Kenyon was forced by several successive counterbids made at such auction sale by Lester Burdick, who was acting in concert with and on behalf of complainants, to raise her bids to a final one of $13,100; that the bidding by Burdick was not made in good faith but constituted by-bidding and puffing for the purpose of forcing her to pay an exorbitant and unconscionable price for said property; and that by reason of such by-bidding and puffing the sale was not a fair one and worked injustice to said Annie B. Kenyon. By reason of the facts above recited, the petition prayed that the court reduce the amount required to be paid by her, in order to receive a deed of the property, from the sum of $13,100 to such amount as may in the circumstances be reasonable.

Upon respondents' motion, such petition was assigned for hearing and was heard together with the commissioner's report, the bill, amended and supplemental answer, replication and rejoinder. At the close of the testimony, following a lengthy trial, respondents moved to amend the partition decree entered by consent on October 18, 1948, so that such decree would conform to what respondents claimed to be the proof in the instant proceeding relative to the equitable claims of respondents, such claims not having been asserted in the original answer nor provided for in the consent decree.

The final decree entered on October 30, 1951 stated that the 'cause came on to be heard on the report and the supplementary report of the Commissioner, the respondents' petition to reduce the sale price at the public auction of the real estate described in the Bill of Complaint, the respondents' Amended and Supplemental Answer, the matters set forth in the Complainants' Replication, and the Respondents' Motion to Amend the Decree of Partition * * *.'

This decree expressly amended the paragraph of the original consent decree which had set forth the extent of the ownership or interest of the...