Wells v. Perry

• Decision Date: 15 January 1930
• Docket Number: Nos. 570, 571.,s. 570, 571.
• Citation: Wells v. Perry, 50 R.I. 427, 148 A. 317 (R.I. 1930)
• Parties: WELLS v. PERRY et al.
• Court: Rhode Island Supreme Court

148 A. 317

WELLS

v. PERRY et al.

Nos. 570, 571.

Supreme Court of Rhode Island.

Jan. 15, 1930.

Case Certified from Superior Court, Washington County.

Two suits by Herbert J. Wells against Mabel E. Perry and others for the partition of real estate. The causes were certified to the Supreme Court for hearing on constitutional questions brought upon the record prior to trial. Decision in accordance with opinion, and papers with decision certified thereon sent back to Superior Court.

Tillinghast & Collins, of Providence, Benjamin W. Case, of Wakefield, and Harold E. Staples and George C. Davis, both of Providence, for complainant.

Henshaw, Lindemuth & Baker, of Providence, for respondent.

SWEENEY, J. These are two bills in equity praying for the partition of real estate alleged to be owned by the parties in fee simple as tenants in common. The causes have been certified to this court as required by section 5109 (chapter 348, § 1), Gen. Laws 1923, for hearing on constitutional questions brought upon the record prior to triad.

The questions are raised in this manner: Respondent, Mabel E. Perry, avers in her answers that she is seized and possessed in fee simple of the entire parcel of real estate described in the bills and denies that complainant or any other person has any interest therein. Having thus disputed complainant's title to said real estate, respondent moved that complainant be required to establish his title in an action at law, citing as authority Conyers et al. v. Davis, 11 R. I. 527 (1877).

The court denied respondent's motions for the reason that section 5829 (chapter 381, § 19), Gen. Laws 1923 (passed August 5, 1891), had annulled the rule announced in Conyers et al. v. Davis, supra. Said section provides that: "Whenever in any suit for partition of real estate in equity it shall be alleged or shall appear that any person claims or may claim any right, title, or interest in such estate adversely or otherwise to any party to such suit, * * * the court may thereupon proceed, and * * * may themselves, in such manner as they deem proper, or by a jury upon issues framed for that purpose, try and determine what, if any, right, title, interest or claim he has therein, and adjudge accordingly, and such judgment in either event shall be final." Interlocutory decrees were entered stating that complainant should not be required to establish his title in an action at law as a condition precedent to maintaining his bills in equity.

Respondent then filed in each cause a. motion in which sh...