Lannon v. Lannon

• Decision Date: 14 February 1917
• Docket Number: No. 368.,368.
• Parties: LANNON et al. v. LANNON.
• Court: Rhode Island Supreme Court

99 A. 819

40 R.I. 60

LANNON et al.

v. LANNON.

No. 368.

Supreme Court of Rhode Island.

Feb. 14, 1917.

Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Suit by Patrick Lannon and others against Mary A. Lannon. From decree, respondent appeals. Reversed and remanded.

George F. Troy, of Providence, for appellant. Easton, Williams & Rosenfeld, of Providence, for appellees.

VINCENT, J. This is an appeal from a decree of the superior court ordering a partition of certain real estate, by sale at public auction, and a division of the net proceeds thereof among the parties thereto according to their respective rights and interests; the decree further providing that any party who may become a purchaser of said real estate or any part thereof, at such sale, may apply his or her fractional share and interest therein as a part of the purchase price thereof. The other portions of the decree are not necessary to the consideration of the questions now presented to us. According to the bill of complaint, the property in question consists of four several parcels of land situate in the city of Providence on Huntington avenue, Oak street, School street, and Plainfield street, upon which there are seven houses. These several estates are what is popularly known as tenement house property. The interests of the parties to the bill are Maria Lannon and Patrick Lannon 91/288 each in fee, Peter J. Lannon 5/96 in fee, and Mary A. Lannon, the respondent, an estate for life or until her remarriage and also a dower right in 91/288. Upon the death or remarriage of Mary A. Lannon, her interest would cease and the whole estate would be held in common and in fee by the complainants, Maria Lannon, Patrick Lannon, and Peter J. Lannon. In other words, upon the death or re marriage of Mary A. Lannon, the remainder of 91/288 would pass unincumbered and in equal portions of 91/864 to each of the other three complainants. The bill prays that a partition may be made by metes and bounds, if possible, and the various parts conveyed to the parties according to their respective interests, and that, if such realty cannot be actually so divided and set off, then and in that event the same to be sold at public auction and the net proceeds divided.

Section 2, c. 330, General Laws of Rhode Island 1909, provides that all joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seised or possessed of any estate of inheritance, in any lands, tenements, or hereditaments, in their own right or in the right of their wives, may be compelled to make partition between them of such lands, tenements, or hereditaments, by writ of partition or bill in equity. This section solely contemplates a partition by metes and bounds. Section 16 of the same chapter provides that, in suits in equity for partition, the superior court may, in its discretion, upon motion of any party to such suits, order the whole premises sought to be divided, or any particular lot, or portion or tract thereof, or the interest of the plaintiff or plaintiffs or of the defendant or defendants in the whole premises, or in any particular lot, portion, or tract thereof, to be sold at public auction, under the direction of the court, etc The intent of the statute is to provide in the first instance for the partition of realty by metes and bounds giving to each owner therein his fair and equitable portion of the same, but in the event of its not being practicable to make such a division, and in that event only, the court may in its discretion order a sale of the property and a division of the proceeds.

As between a sale and a partition, the courts almost universally have favored a physical division as not disturbing the existing form of the inheritance, and statutes which include a provision for a sale have been very generally construed to require that a division by metes and bounds must be made whenever practicable, and that the impracticability of such a division must be shown affirmatively before a sale will be decreed. Johnson v. Olmsted, 49 Conn. 509; Candee v. Candee, 87 Conn. 85, 86 Atl. 758; Smith v. Greene (W. Va.) 85 S. E. 537; Van Arsdale v. Drake, 2 Barb. (N. Y.) 599; Reeves v. Reeves, 58 Tenn. (11 Heisk.) 669; Shorter v. Lesser, 98 Miss. 706, 54 South. 155; Rowe v. Gillelan, 112 Md. 108, 76 Atl. 500.

The present consideration then comes down to the one question: Would it be practicable to divide the estate by metes and bounds? If it would be, then the decision of the superior court is erroneous. If it would not be, then there is no error, and the decree appealed from should be allowed to stand. In Ford v. Kirk, 41 Conn. 9, the court said:

"But although extensive powers are vested * * * in the superior court, the power always has been, land ought to be, very cautiously exercised. The compulsory sale of one's property without his consent is an extreme exercise of power warranted only in clear cases."

In Rowe v. Gillelan, supra, the court held that, when the weight of the evidence is in favor of the parties desiring...