Putnam v. Davis

• Decision Date: 27 December 1960
• Citation: 166 A.2d 469,103 N.H. 121
• Court: New Hampshire Supreme Court
• Parties: John L. PUTNAM et al. v. Grace M. DAVIS.

Page 469

166 A.2d 469

103 N.H. 121

John L. PUTNAM et al. v. Grace M. DAVIS.

Supreme Court of New Hampshire.

Argued Nov. 1, 1960.

Decided Dec. 27, 1960.

William F. Batchelder, Plymouth, for plaintiffs, furnished no brief.

John H. Ramsey, Meredith, and Upton, Sanders & Upton, Concord, Richard F. Upton, Concord, for defendant.

McLane, Carleton, Graf, Greene & Brown and Robert A. Raulerson, Manchester, amici curiae.

DUNCAN, Justice.

In Coleman v. Coleman, 94 N.H. 456, 55 A.2d 471, it was held that under the partition statute then in effect (R.L., c. 410, § 1) remaindermen were not entitled to demand partition against a cotenant in remainder and the life tenant, because the latter held an estate of a class different from that of the plaintiffs. See Brierley v. Brierley, 81 N.H. 133, 124 A. 311; Curtis Inn v. Pratte, 94 N.H. 380, 54 A.2d 357.

The statute has since been amended by the addition of a sentence which permits partition against holders of estates of different classes or duration, at the instance of a 'holder in possession of a fee simple interest.' As thus amended, the controlling statute (RSA 538:1) reads as follows: 'Parties. One or more persons, having or holding real estate with others, in possession, reversion or remainder, may have partition thereof as in this chapter provided. And the petitioner may, at his election, make a tenant for life or for years, or a tenant by the curtesy of the entire real estate or any part thereof, or whoever may be entitled to a contingent or vested remainder or reversion or any executory interest in the entire real estate or any part thereof, or any lien-holder on the entire real estate or any party thereof, a petitionee in the action. The holder in possession of a fee simple interest in such real estate may have partition, irrespective of the class or duration of the estate of any petitionee named in the action.'

In Wallace v. Stearns, 96 N.H. 367, 77 A.2d 109, the statute was held by virtue of the amendment to permit partition by the owner of an undivided half interest in fee against the holders of a life estate and remainder in the other half interest.

The pending action presents the question of whether persons 'holding real estate with [each other] in reversion' may have partition against a life tenant, under the circumstances set forth in the defendant's offer of proof. That the defendant is a life tenant is not seriously disputed. The lease to her for an indefinite term, to last as long as she may desire to occupy the premises, created a life estate. Wilmarth v. Bridges, 113 Mass. 407; Annotation 45 A.L.R.2d 699, 707. See 2 Thompson on Real Property, § 785. For the purpose of ruling upon her exception to exclusion of her offered proof, it must be considered that she is in actual possession and occupancy of the premises in question.

It is plain that partition would not have been available to the plaintiffs before the 1949 amendment, since their estates are of a class different from that of the defendant. Coleman v. Coleman, supra. Hence their petition may be maintained only if as holders of a fee-simple interest in reversion they are also 'holders in possession' within the meaning of the concluding sentence of the amended section.

The expression 'holding * * * in possession' previously appeared in the first sentence of the section before amendment. It was there used to describe persons holding estates in possession, in contradistinction to persons holding estates of other classes, namely, in reversion or in remainder. 2 Tiffany, Real Property (3d Ed.) § 475. Reversions and remainders are commonly classified as future interests. While they are existing interests or estates, their privilege of possession is future and not present. 1 American Law of Property, § 4.1, p. 408. 'A reversioner has neither actual nor constructive possession, or the right to either, but has simply an estate in expectancy, the life estate intervening.' Metcalfe v. Miller, 96 Mich. 459, 462, 56 N.W. 16, 18. See 19 Am.Jur. 465, Estates, § 5; 31 C.J.S. Estates § 15, p. 28.

The 1949 amendment extended the remedy of partition to a 'holder in possession' regardless of the class of the estate 'of any petitionee named in the action.' However the same remedy was not extended to holders of future estates, whether in reversion or remainder. Thus while the amendment would...