Warner v. Eaton

• Decision Date: 04 December 1917
• Citation: 102 A. 535,78 N.H. 515
• Parties: WARNER. v. EATON.
• Court: New Hampshire Supreme Court

102 A. 535

78 N.H. 515

WARNER.

v. EATON.

Supreme Court of New Hampshire. Sullivan.

Dec. 4, 1917.

Transferred from Superior Court, Sullivan County; Chamberlain, Judge.

Petition by Benjamin E. Warner against Lyman B. Eaton.On report.Question transferred, answered in the negative, and case dismissed.

Petition for partition of a tract of land of which the plaintiff owns seven thirty-seconds and the defendant twenty-five thirty-seconds.Facts found by a master.August 29, 1908, Mrs. Francis W Harris, the plaintiff's mother, owned twenty-five thirty-seconds of a homestead in Charlestown village, and held a life lease of seven thirty-seconds of the same, which the plaintiff owned.On that date she conveyed to the defendant and Helen M. Robertson by warranty deed a portion of this homestead.The tract thereby conveyed is the land of which partition is asked.The defendant acquired Mrs. Robertson's interest in 1909.At the time of Mrs. Harris' deed the defendant and his cograntee supposed and believed that Mrs. Harris was the sole owner, and that they obtained complete title by her deed.They soon erected a building upon the lot purchased of Mrs. Harris, which cost $5,000 in addition to $500 paid for the land.The land and building together are now worth from $4,000 to $4,500.While the building was being constructed, the defendant ascertained the state of the title from an examination of the records in the register's office.The plaintiff did not know of the deed given by Mrs. Harris before it was given, but was soon afterwards informed of it and of the defendant's claim of ownership and of the Improvements being made.The plaintiff consulted counsel as soon as he heard the lot had been conveyed, but made no claim to the defendant until a year after the completion of the building.The plaintiff supposed that the defendant considered himself the owner of the premises, and his silence misled the defendant and induced him to continue the improvement of the property.The plaintiff's chief reason for failing to claim an interest in the land was his expectation that he would, after the death of his mother, obtain some interest in the improvements without payment therefor.The court affirmed the report of the master, and transferred the question whether upon the facts found the plaintiff is entitled to partition.

Jesse M. Barton, of Newport, for plaintiff.

Hurd & Kinney, of Claremont, for defendant.

PARSONS, C. J.The plaintiff has not lost his title to seven thirty-seconds of the homestead which he owned in common with his mother at the date of her conveyance of a parcel thereof to the defendant because of his failure to assert his title while the defendant improved the property.Clark v. Parsons, 69 N. H. 147, 39 Atl. 898, 76 Am. St. Rep. 157.But her deed of the whole of a distinct parcel of the common property is good to the extent of her interest.P. S. c. 137, § 18.Her deed is also valid against the plaintiff in partition, unless the land conveyed or some portion of it is equitably required to give him his just share in the whole.Horner v. Reynolds, 76 N. H. 259, 81 Atl. 1078;Clark v. Parsons, 69 N. H. 147, 157, 39 Atl. 898, 76 Am. St. Rep. 157;Holbrook v. Bowman, 62 N. H. 313, 321.Except in such contingency her deed is a partition of the premises.Pickering v. Moore, 67 N. H. 533, 536, 32 Atl. 828, 31 L. R. A. 698, 68 Am. St. Rep. 695;Gage v. Gage, 66 N. H. 282, 288, 29 Atl. 543, 28 L. R. A. 829.It does not appear that upon a partition of the whole estate plaintiff's just share cannot be set off to him or equitably satisfied without interference with the small parcel which the defendant holds under deed from the...