Leavitt v. Benzing
Decision Date | 02 July 1951 |
Parties | LEAVITT et al. v. BENZING et al. |
Court | New Hampshire Supreme Court |
Cooper, Hall & Cooper, Burt R. Cooper, Rochester, for the plaintiffs.
Preston B. Smart, Ossipee, for the defendants.
In Eastman v. Barnes, 62 N.H. 630, 631, an appeal from a decree accepting a report of a committee of partition, it was stated that to justify reversal of such a decree
The nature of the offer of proof made by the defendants does not appear so that we are restricted in passing upon the defendants' first exception to a determination of the question of whether the Trial Court erred in ruling that 'only fraud could be used to set aside the commissioners' report.' As applied to the first allegations of the defendants' motion the ruling was correct. The allegation was merely that the committee did not make a fair and equal division. This was a question of fact upon which the finding of the committee was final. Merrill v. Durrell, 67 N.H. 108, 36 A. 613; Eastman v. Barnes, supra. The Trial Court was under no obligation to make an independent determination of the facts because of this allegation alone or because of evidence calculated to show the division to be unfair and unequal. Doughty v. Little, 61 N.H. 365.
If, however, the evidence tended to support the second allegation of the motion, and to show that the committee was mistaken in deciding that the lands could be partitioned without 'great prejudice or inconvenience,' R.L. c. 410, § 25, because they failed to consider that the value of the whole was substantially greater than the aggregate value of its parts, it would have been error to exclude the evidence. Under the statute the defendants' right to a sale of the estate is in part contingent upon a finding by the court that it cannot be divided without great prejudice or inconvenience made upon the report of the committee that the estate is of such a nature. R.L. c. 410, § 25 supra. 'A proper case for sale, instead of partition in...
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Berg v. Kremers
...of the property from the evidence in the case and, on appeal, these decisions were affirmed. Idema v. Comstock, Supra; Leavitt v. Benzing, 97 N.H. 118, 82 A.2d 86 (1951); Blanchard v. Cross, 97 Vt. 370, 123 A. 382 (1924); Hagerty v. Nobles, 244 Or. 428, 419 P.2d 9 (1966); Nelson v. Hendrick......
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Haggerty v. Nobles
... ... DeWolf, 268 Wis. 244, 248, 67 N.W.2d 380; Williamson Investment Co. v. Williamson, 96 Wash. 529, 165 P. 385. See, also, Leavitt v. Benzing, 97 N.H. 118, 82 A.2d 86; Freeman, Cotenancy 718, § 542; 4 Thompson on Real Property, 1961 Replacement, 309, § 1828 ... ...
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Delucca v. Delucca
...the fact that the value of the land as a whole may be substantially greater than the aggregate value of its parts. Leavitt v. Benzing, 97 N.H. 118, 120, 82 A.2d 86 (1951). In addition, before ordering sale, the court should consider such offers as may be made by the several owners for a cho......
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In re Belyea, 12121-JMD.
...if divided in kind, would be worth in the aggregate an amount substantially less than it would be worth as a whole." Leavitt v. Benzing, 97 N.H. 118, 120, 82 A.2d 86 (1951). Here, the parties have stipulated that together the parcels are worth $92,500 and partitioned they are worth $30,000 ......