39 A.2d 748 | Vt. | 1944
The parties own certain real estate as tenants in common, and one of them has brought a petition for partition as authorized by Sections 1964 and 1966 of the Public Laws. Judgment has been entered that partition should be made and commissioners have been appointed to set off the shares of the parties, as provided by section 1972. The commissioners have reported to the County Court that the real estate cannot be divided without great inconvenience to the parties, whereupon the Court has recommitted the matter to the Commissioners, instructing them to assign the real estate "to one of the parties provided he or she pays to the other party such sum of money at such times and in such manner as the Commissioners judge equitable." The defendant excepted to this order and the cause has been passed to us before final judgment in accordance with P.L. sec. 2072.
The statute (P.L. 1977) under which the recommittal was made is as follows: "When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable." *72
The ground of the exception is that under this statute it is the duty and function of the County Court to adjudge which of the parties shall be the provisional assignee and that the order is erroneous in that the determination of this question is left to the commissioners.
It is the fundamental rule of statutory construction that the intention of the Legislature must be ascertained and given effect. In re Walker Trust Estate,
P.L. 1977 has come down to us from the revision of 1797, Chapter 48 sec. 5. It was originally enacted as follows: "That when it shall appear to the court, that any messuage, tract of land or other real estate cannot be divided without great inconvenience to the parties interested, they may order the same to be assigned to one of the parties; such party to whom the same shall be assigned, paying such sum or sums of money, at such time or times, and in such manner to the other party, or parties, as the commissioners, to be appointed by the court, shall judge just and equitable." With some unimportant changes in punctuation this language remained in the successive revisions of 1808, 1824, 1839, 1850, 1862 and 1880, but in the revision of 1894 (V.S. 1528) it assumed its present form. It is evident under the original statute, that the County Court was intended to be the tribunal to be satisfied of the necessity of a partition by assignment and to possess the authority to order the assignment to be made. It is not to be supposed that the later change in wording indicates a different legislative intent. *73
P.L. 1977 is contained in Chapter 84 of the Public Laws, all of the sections of which relate to the same subject matter and therefore, in accordance with the principle to which reference has been made, may be construed with reference to each other as parts of one system. The title of the Chapter "Partition of Real Estate," fortifies this conclusion. See Doubleday v. Town ofStockbridge,
Although no procedure is specified in the case of an assignment under P.L. 1977, we consider the legislative intention to be that the provisions of P.L. 1975, as to a report by the commissioner and its acceptance and judgment thereon by the court, is applicable where the estate cannot be divided without great inconvenience and an assignment becomes advisable. This appears to have been the practice followed in such cases. In Carver v.Spence,
We conclude, therefore, that the procedure prescribed by statute, and followed in practice by the courts, is that if the commissioners find that the estate cannot be divided without great inconvenience, that is, that the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person (Blanchard v. Cross,
The petitioner in the present case calls attention to the entry order in Baldwin v. Aldrich,
The order to which exception has been taken is open to the same criticism. It does not clearly define the duty of the commissioners, and for this reason a new order should be made.
Judgment reversed, pro forma, and cause remanded with directionthat an order shall be entered in accordance with the viewshereinbefore expressed in this opinion.