Penfield v. Jarvis

Decision Date25 July 1978
Citation399 A.2d 1280,175 Conn. 463
CourtConnecticut Supreme Court
PartiesHelen Wilcox PENFIELD v. Adeline Penfield JARVIS et al.

John L. Bonee III, Hartford, with whom were Burton A. Greenspan, Hartford, and, on the brief, John L. Bonee, Hartford, for appellant (plaintiff).

Robert C. Danaher, Hartford, with whom, on the brief, was Frederick B. Tedford, Hartford, for appellees (defendants).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

COTTER, Chief Justice.

The plaintiff brought this action for a partition by sale of real property pursuant to § 52-500 of the General Statutes. 1 The court sustained the defendants' demurrer to the first prayer for relief sought in the complaint, and, on the plaintiff's failure to plead over, rendered judgment for the defendants, from which the plaintiff has appealed.

The validity of a court's ruling sustaining a demurrer is determined upon the basis of the facts which may properly be proved under the allegations demurred to; and such facts are to be given the same favorable construction that the trier would adopt in admitting evidence. Kirwan v. State, 168 Conn. 498, 500, 363 A.2d 56.

The amended complaint alleges the following: The plaintiff, Helen W. Penfield, and two of the defendants, Adeline P. Jarvis and William F. Jarvis, are tenants in common of life estates in six noncontiguous parcels of real property located in Portland, Connecticut. Adeline P. Jarvis also has a vested remainder in a portion of four of the parcels, while the remaining three defendants, Penfield Jarvis, Marshall N. Javis and Wallace F. Jarvis, hold vested remainders in all six parcels as tenants in common. The parties to the action hold varying fractional shares in these parcels both as to the life estates and the remainder interests; 2 and no persons other than the plaintiff and all defendants have any interest in the property. 3 The complaint further alleges that an in-kind partition of the property would be impractical since the subject real estate is composed of six noncontiguous parcels of land each having a different size, potential use, topography and value and since the ownership of each is held in a variety of fractional shares. Moreover, a sale of the property would best promote the interests of the owners in view of the fact that the premises are not productive of income necessary to the support and maintenance of the plaintiff.

In her prayer for relief the plaintiff claimed, inter alia, "(a) decree pursuant to Section 52-500 of the Connecticut General Statutes ordering the sale of said premises." The defendants demurred to that prayer for relief on the grounds that the complaint did not allege "that any of the remaindermen are heirs of the plaintiff or that their interests are in any way concerned with a failure of her heirs." Thus, the specific issue raised by this appeal is whether, under our statute, a co-life tenant may maintain an action for partition by sale against remaindermen or against other life tenants so as to bind those holding future interests in the property, where the remaindermen are neither heirs of the plaintiff nor holders of interests in any way concerned with the failure of her heirs.

In view of the fact that the precise question raised by this appeal is one of first impression in this state, earlier cases decided by this court involving the right to partition are of limited value. Similarly, since the statutory right to partition by sale must be examined in light of the particular statute in effect, its language and historical derivation, the decisions of other jurisdictions are not helpful. An historical examination of the right to partition generally and its development under Connecticut law must, therefore, govern our determination of the issue raised in this appeal. See Bahre v. Hogbloom, 162 Conn. 549, 553, 295 A.2d 547.

Compulsory partition procedures, which originated under early English law, were initially available only to coparceners those who had become concurrent owners by way of descent and who, therefore, were never voluntary participants in the creation of the concurrent ownership. Freeman, Cotenancy & Partition (2d Ed., 1886) § 420. In the sixteenth century, this right to partition in kind was, by statute, made available to joint tenants and tenants in common of estates of inheritance who had a present right to possession of the property. 31 Henry VIII, c. 1 (1539). In the following year, the remedy of partition was expressly extended to include those holding land in joint or common tenancy for life or for a term of years, provided that such partition would not be prejudicial to any person not a party to the action. 32 Henry VIII, c. 32 (1540). Shortly thereafter, an equitable procedure for partition in kind evolved in the Courts of Chancery, and its demonstrated superiorities caused it rapidly to supplant the procedure initiated by a common-law writ. 4 Restatement, 2 Property, c. 11, p. 654.

Both at law and in equity, however, the general rule was and is that a joint tenant or tenant in common must have either actual possession or an immediate right to possession in order to maintain an action for partition. Adam v. Ames Iron Co., 24 Conn. 230, 233; 2 American Law of Property § 6.22. Such a rule is understandable in the context of the problem to which the remedy by partition was directed: avoiding the conflicts which might arise if each cotenant asserted the right to be in possession of every part of the lands of the cotenancy. Through the right to partition, "it was intended that the undivided possession should be severed, and that each person having the right to be in possession of the whole property should exchange that right for one more exclusive in its nature, whereby, during the continuance of his estate, he should be entitled to the sole use and enjoyment of some specific pur-party." Freeman, op. cit. § 440, p. 582. Since those with no right to immediate possession would not be deprived of present use and enjoyment or inconvenienced by the undivided possession of the property by others, there was a logical basis for denying to tenants of estates in reversion or remainder the right to interfere with tenants in possession, and, correspondingly, for precluding tenants in possession from effecting a severance of estate in remainder or reversion. Freeman, loc. cit.; 2 American Law of Property, op. cit. § 6.22. Possession or the right to immediate possession is, therefore, a general prerequisite to the maintenance of an action for partition. Adam v. Ames Iron Co., supra.

In this country, each state now has a statute allowing for compulsory partition. These statutes are, in large measure, embodiments of the prior practices of the English courts. Restatement, 2 Property, p. 655. The first Connecticut statute providing an absolute right to partition by physical division was enacted in 1720; Statutes, 1796, p. 258; the substance of which has survived virtually intact to the present day with only insignificant changes in the wording of the original enactment. 5 While there are numerous decisions by this court stressing that this statutory right to partition is absolute and that the difficulty of making partition and inconvenience to other tenants are not grounds for denying the remedy ; e. g., Johnson v. Olmsted, 49 Conn. 509, 517; Scovil v. Kennedy, 14 Conn. 349, 360; we find no cases specifically treating the scope of a life tenant's right to partition under the statute: i. e., can a life tenant obtain partition against parties holding successive interests, and can a life tenant obtain partition binding beyond the duration of the life estate.

Despite the dearth of judicial authority regarding the full scope of this statutory remedy in Connecticut, a review of the traditional application of the partition remedy supports the conclusion that, under our statute, a party could obtain partition only to the extent of the interest actually held. Thus, for example, under the prevailing practice, a party possessing a life interest would be entitled to partition only for the duration of his life. Freeman, op. cit. § 440. Moreover, under the rule limiting the right to partition to concurrent owners with Present possessory interests, the partition of successive interests was not permitted under the common law since the requisite unity of possession was absent. See Harrison v. International Silver Co., 78 Conn. 417, 421, 62 A. 342; 1 Swift, Digest, p. 103; Simes & Smith, Law of Future Interests § 1769. A sole life tenant, therefore, would not be allowed to maintain partition as against reversioners or remaindermen; 2 Tiffany, Real Property (3d Ed.) § 476; and, similarly, reversioners or remaindermen were incapable of demanding partition against the possessory owners because they were not concurrent owners adversely affected by the undivided possession held by others. Culver v. Culver, 2 Root 278; Restatement, 2 Property § 175. The enactment, in 1840, of a statute providing for only a limited right to partition successive interests; 6 Public Acts 1840, c. XXI; fortifies the proposition that, in this state, there was no Broad right to partition of such interests.

As noted earlier, under the rule both at common law and in equity "(a) cotenant of an estate in possession less than in fee, although entitled to partition, cannot by his partition affect estates in reversion or remainder unless authorized to do so by statute." 30 Cyc. Law and Proc., Partition, p. 183 (1908); 1 Kerr, Real Property § 612 (1895). There is no Connecticut statute expressly extending this limited right of a cotenant holding a less-than-fee interest, nor is there judicial precedent construing the existing statute to convey such a right. If we decide on this basis that a co-life tenant can obtain partition only for the duration of the life estate, and further conclude that the right of a life tenant to...

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