Leavitt v. Benzing

• Decision Date: 08 September 1954
• Citation: Leavitt v. Benzing, 107 A.2d 682, 99 N.H. 193 (N.H. 1954)
• Parties: LEAVITT et al. v. BENZING et al.
• Court: New Hampshire Supreme Court

Page 682

107 A.2d 682

99 N.H. 193

LEAVITT et al. v. BENZING et al.

Supreme Court of New Hampshire.

Argued May 4, 1954.

Decided Sept. 8, 1954.

Cooper, Hall & Cooper, John M. Brant, Rochester, and William H. Sleeper, Exeter (Burt R. Cooper, Rochester, orally), for plaintiffs.

Sulloway, Jones, Hollis & Godfrey, Concord (Irving H. Soden, Concord, orally), for defendants.

BLANDIN, Justice.

The first question before us is whether the defendants may now attack the decree of partition upon the ground that the committee failed to divide the land among the plaintiffs individually rather than by families. There was nothing in their original motion to set aside the report to direct attention to the point they now raise, the grounds stated then being that 'The value of the several parts as set off in the Commissioners' report are not worth as much as the whole' property. (Emphasis supplied.) Later, after the Trial Court had entered 'Judgment on report,' the case was transferred to this Court, the defendants' objections being that the division was not fair or equal and also that the Court had ruled as a matter of law in denying the motion to set aside the report and judgment, that an oral offer of proof must be refused because 'only fraud could be used to set aside the Commissioners' report.' The previous opinion, Leavitt v. Benzing, 97 N.H. 118, 82 A.2d 86, handed down on July 2, 1951 overruled the exception that the division was not fair nor equal, holding that the committee's finding on this was final, but said that the ruling that only fraud could be a ground for setting aside the report was error. The nature of the offer of proof did not appear in the transferred case but the opinion stated that if it were such as tended to show that the committee were mistaken in deciding the lands could be partitioned without 'great prejudice or inconvenience because they failed to consider comparative values,' the evidence should have been received, and ordered the case returned to Superior Court to decide whether justice required a rehearing.

Following this decision the defendants again moved that the report and judgment thereon be set aside among other reasons because the committee erred since 'the value of said property as a whole is worth substantially more than the value of the parts set up by the reports of the said Committee.' The Superior Court granted the rehearing which took place on July 6, 1952 and on that day the defendants filed in support of their motion a written offer of proof to show that 'the value of the property as a unit was substantially greater than the value of the several parts, as set off by the Commissioners.' (Emphasis supplied.) Preliminary to this hearing, the following colloquy took place between the Court and defendants' counsel relative to the purpose for which the offer of proof might be received under the Supreme Court ruling.

'The Court: Perhaps I better get for the record again both counsels' view on what the Supreme Court means when it said in part: '* * * but since the nature of the proof offered in support of the motion does not appear, we are in no position to hold the error prejudicial on the ground that evidence was offered which would warrant relief.'

'Now, Mr. Smart, for the...