Vail v. Hammond

• Citation: 60 Conn. 374,22 A. 954
• Court: Supreme Court of Connecticut
• Decision Date: 20 April 1891
• Parties: VAIL v. HAMMOND.

22 A. 954

60 Conn. 374

VAIL

v. HAMMOND.

Supreme Court of Errors of Connecticut.

April 20, 1891.

Appeal from superior court, Hartford county; F. B. Hall, Judge.

Suit by Thomas J. Vail against Henry Hammond for an injunction, the appointment of a receiver for certain letters patent, and an accounting. Judgment for plaintiff. Defendant appeals. Affirmed.

A. P. Hyde and H. Cornwall, for appellant.

C. E. Perkins and A. Perkins, for appellee.

ANDREWS, C. J. The cause of action set forth in this complaint is based upon the breach of an alleged contract between the parties, both of whom resided in this state, to sell certain patents owned by the defendant, for the purpose of paying the plaintiff the advancements which he claims to have made to the defendant in respect to the patents. The defendant demurred to the complaint, and assigned various reasons of demurrer. Most of these point out grounds on which it was claimed that the complaint was multifarious. The demurrer was overruled. Before the hearing, the plaintiff, by amendments to the complaint, and by changing the prayers for relief, removed the causes for which these reasons of demurrer were assigned. If it be true that the complaint was multifarious at first, and there was error in overruling the demurrer, still we think by reason of the amendments such error did not injuriously affect the defendant, and that under section 1135 of the General Statutes it cannot be considered on appeal. Another reason of demurrer was that the superior court, as a state court, had no power to order the sale of the defendant's interest in the patents on the ground that a sale would better promote the interests of the plaintiff and the defendant. Section 1307 of the General Statutes is that "courts of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any estate, real or personal, owned by two or more persons, when in the opinion of the court a sale will better promote the interests of the owners; and of any real estate in which or any portion of which two or more persons may have different and distinct interests, when in the opinion of the court such real estate cannot be conveniently used and occupied by the parties in interest together, and a sale will better promote the interests of the owners." The argument of the defendant is that this statute applies only to tangible property which is within the jurisdiction of the courts of this state, and that a patent is not property within the jurisdiction of any state court. The jurisdiction of a court of equity is ordinarily in personam, and not in rem. A state court, having jurisdiction of all the persons interested in a patent, might, perhaps, compel the sale of the patent, in a proper case, for the purpose of converting a joint ownership into several ownerships, as well as to compel the sale for any other, purpose. The language of the statute is broad enough to confer such power. But we do not decide this. We purposely leave it undecided.

The real ground on which the demurrer should have been placed was that the case made in the complaint was not one which authorized the court to order a sale under that statute. The object of the statute is to enable any joint owner, or owner in common with another, of real or personal property, to put an end to such joint ownership. "No person can be compelled to remain the owner with another of any real estate, not even if it became such by his own acts. Every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it shall be exercised. Therefore the law affords to every owner with another relief by way of partition, and this regardless alike of the difficulties attending separation and the consequeuces to his associate. Bights to the use of running water and rights to dig ores have been declared to be subject to this law. But, inasmuch as it might sometimes happen that by a partition the property would be practically sacrificed, the statute has opened the way of escape from such a result. It permits a court of equity to order the sale when, in its opinion, a sale will better promote the interests of the owners." Johnson v. Olmsted, 49 Conn. 517. This decision had reference to real estate, but the statute confers equal power on the court to order a sale in cases of the joint ownership of personal property. A series of decisions has shown that this statute applies only in cases of ownership. It does not mean that any person interested in any way in real or personal estate may bring a complaint, and that the court must order a sale, but only those interested therein as owners are so entitled. Spencer v. Waterman, 36 Conn. 342; Wilson v. Peck, 39 Conn. 54; Potter v. Munson, 40 Conn. 473; Ford v. Kirk, 41 Conn. 9; Johnson v. Olmsted, 49 Conn. 509. This statute does not confer any power on the court to order a sale of property for the purpose of paying debts. The plaintiff was not the owner of the patents in this case. He did not claim to be the owner; on the contrary, he asserted that the defendant was the sole owner. He did not seek to be made the owner of them, but only asked that they be sold in order to pay him a debt. "We think, therefore, this averment of the complaint should have been stricken out, either upon the demurrer or upon a motion to expunge. If, however, the other averments in the complaint require or fully support the judgment that was in fact made, then this averment may be treated as surplusage, and has done the defendant no harm. Sandford v. Thorp, 45 Conn. 241. Later in the progress of the case the defendant filed an answer, and there was a hearing. The court found the issues for the plaintiff, and that there was an agreement between the parties that all the patents should be sold, and from the avails of such sales the advances made by the plaintiff, with interest thereon, should be first paid, and the remainder of such avails after such payments should be equally divided between them. The court also found the amount of the advancements made by the plaintiff; that the defendant refused to proceed further under the agreement, or in selling or attempting to sell the patents, and that the plaintiff and defendant were unable to come to any agreement respecting their Interest in the property; and thereupon appointed a receiver, ordered the defendant to convey the several patents to the receiver, and directed the receiver to sell the same, and to apply the avails as set forth in the judgment.

The defendant insists that the judgment goes beyond the allegations of the complaint. He does not deny that the judgment, so far as it directs a sale of the patents for the purpose of repaying to the plaintiff the advancements he has made, is warranted by the averments of the complaint; but he says the court has gone further, and has found that the whole of the patents were to be sold,—not merely enough to repay the plaintiff, but the whole of the patents,—and the proceeds divided; and in this respect he says the finding is not authorized by the allegations of the complaint, and is a finding of matter not in issue. This objection must be answered by a reference to the complaint. The first and the third paragraphs contain the averments necessary to be considered. The first is important in this respect only because it is by reference made apart of the third. The first paragraph alleges that the plaintiff was the owner of certain pistols and parts of pistols;...