Watkins v. Merrihew

• Decision Date: 01 October 1929
• Citation: 147 A. 345,102 Vt. 190
• Parties: EMMA F. WATKINS ET AL. v. HELEN C. MERRIHEW ET AL
• Court: Vermont Supreme Court

147 A. 345

102 Vt. 190

EMMA F. WATKINS ET AL. v. HELEN C. MERRIHEW ET AL

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Partition---Costs---Validity of Order To Pay Costs from Funds Paid to Clerk on Award of Partition---Time within Which To Remove Buildings Belonging to Petitionee from Premises When Time Not Fixed by Court.

1. In proceedings for partition, in which county court awarded partition, appointed a commission, and acted favorably upon latter's report that, in view of great inconvenience to parties interested to divide property and willingness of petitioners to accept assignment of petitionees' interest at reasonable valuation, it would be equitable for petitioners to pay petitionees a sum specified for their interest, where pleadings raised no issue respecting interest of respective parties in premises, but did raise issue concerning disposition of such interests, held that under G L. 2162 court did not err in awarding petitioners their reasonable costs, since petitioners were obliged to accede to wish of petitionee who desired to retain her interest or proceed as they did.

2. In proceedings for partition, court in awarding costs was not required, under G. L. 2167, 2170, and 2174, to apportion them among parties interested, where only petitionee making answer therein stated that she had acquired and then held title to several interests of all other petitionees, there being nothing in sections of statute mentioned to indicate that petitioner for partition is to bear part of costs allowed him.

3. Since proceedings for partition are more or less equitable in nature, court had authority to direct payment of petitioners' costs out of money in hands of clerk, which petitioners had paid upon award of partition.

4. In partition proceedings, failure of court to comply with request of petitionee to fix time within which she might remove from premises certain buildings belonging to her, held without error, since law gives reasonable time.

PETITION FOR PARTITION of real estate. Judgment that partition be made, and commissioners appointed who, after hearing, made their report. Hearing on such report at the September Term, 1928, Chittenden County, Buttles, J., presiding. Order made assigning petitionees' interest to petitioners upon payment of sum found by commissioners to be equitable therefor. Petitioners' costs taxed and allowed at $106.60 were ordered to be deducted from amount paid by petitioners in hands of clerk and balance directed to be paid to petitionees when order respecting assignment of their interest was complied with. Petitionee, Winnifred D Merrihew, excepted to judgment and order relating to costs. Affirmed.

Judgment affirmed.

Robert W. Ready and Charles F. Black for petitionee, Winnifred D. Merrihew.

Fred M. Butler for the petitioners.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

SLACK

This is a petition for the partition of certain lands in the town of Colchester. The county court awarded partition and appointed a commission which, after hearing, reported that the land could not be divided without great inconvenience to the parties interested; that the petitioners had signified a willingness to accept an assignment of petitionees' interest at a reasonable valuation; that it would be equitable for petitioners to pay petitionees four hundred dollars for their interest, and recommended an order assigning such interest to petitioners upon the payment by them of that amount. Thereupon petitioners paid said amount to the clerk of Chittenden county court for the benefit of petitionees, and the order recommended by the commission was made.

The court found that petitioners' costs taxed under G. L 2162 amounted to $ 106.60, which it adjudged to be reasonable, and ordered that they be deducted from the amount in the hands of the clerk and that the balance thereof be paid to the petitionees when the order respecting the assignment of their interest was complied with.

To the judgment and order relating to costs the petitionee, Winnifred D. Merrihew, excepted on the ground that under the pleadings petitioners were not entitled to costs, and that the court had no authority to order the payment of same out of the money held by the clerk.

G. L. 2161 provides: "If any of the facts alleged in the petition are controverted by a person interested, the objection to the petition shall be made in writing, by answer, to which the petitioner may reply or demur, so that the matter in dispute may be reduced to an issue and tried and determined as in civil causes."

G. L 2162 provides: "If the issue is determined in favor of the petitioner, or if a person interested, after notice, does...