Dyer v. Vinton

| R.I. | Oct 6, 1873

Lead Opinion

The prayer of the bill was that the estate might be sold under the decree of the court, and the net proceeds thereof divided and paid out to the complainants Elisha Dyer and Caroline Lyman, and to the respondent Frances J. Vinton, in equal shares, to be held and enjoyed by them respectively and in severalty, and for general relief.

To so much of the bill as sought a discovery of the matters relating to the necessity for a sale and prayed for special relief, the respondents demurred, assigning for cause that the complainants had not by their bill made out such a case as entitled them to either. In this case we can see no impropriety in the complainant's making the motion for sale originally in his bill, as he might do by separate motion afterwards. But we think the bill ought to contain a prayer for partition of the estate, although it need not ask for partition by metes and bounds.

Demurrer sustained with leave to amend. The following decree on the demurrers was thereupon enteredby the full court, POTTER, J., dissenting: —

Said case came on to be heard on demurrers filed by the defendants, and was argued by counsel, and thereupon upon consideration thereof it is ordered, adjudged, and decreed by the full court as follows: That said demurrers to said bill, in so far as said bill seeks a discovery as to or concerning the facts and statements referred to in said demurrers as grounds for the sale of the estate described in said bill, and in so far as the complainants have in and by said bill prayed for a sale of said estate and a division of the proceeds of the sale, is sustained, unless the complainants shall, on or before the 16th day of December, A.D. 1873, amend said bill, as they have suggested they intend to ask leave to amend the same, by inserting in place of said prayer in said bill (which is to be struck out) the following prayer and motion, to wit: Wherefore your orators pray that partition of said estate may be made; and inasmuch as said estate, as your orators aver, cannot be divided by metes and bounds, they move that said estate may be sold, and the proceeds of the sale of the same divided between said parties in the proportions aforesaid, according to the statute in such case provided: It being further ordered, that, upon the making of said amendment, the allegations of facts and circumstances in said bill referred to in said demurrers be allowed to stand, not however as a substantive part of the bill, but as a statement of grounds in support of said motion.

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Dissenting Opinion

The bill represents that the two complainants and the respondent are possessors of a certain house and lot of land in the city of Providence, which they hold under the will of Elisha Dyer, deceased; that after his decease $8,000 was expended on it in repairs; that the complainants are entitled to their shares in severalty; that the dwelling-house covers more than one third of the lot, and that it cannot be divided, and therefore pray for a sale and a division of the proceeds into three equal shares, and for general relief; and the prayer for subpoena, and for defendant to appear, c., and answer all and singular the premises.

To so much of this bill as seeks a discovery as to money expended, and whether the facts stated as rendering a sale necessary are true, and to so much as prays for a sale, the defendant demurs, because the complainants have not stated a case entitling them to the relief. Upon the construction the court have put upon the statute, the complainant was not entitled to the sale in the mode prayed for. The demurrer was therefore sustained, with leave to amend. Two forms of decree are now proposed to carry out the opinion formerly delivered. The court said that as the statute is a statute for partition, and contains a provision that the court may, on motion by either party, order a sale of the whole or any part by the commissioners appointed to divide it, the bill should pray for partition, but need not pray for partition by metes and bounds, and that the motion for sale may be contained in the bill itself. The only objection that suggested itself to this course was, that if no answer was filed and the bill was taken as confessed, it might be considered that the sale would be ordered as a matter of course. But the facts being proved or taken as confessed, the court might still exercise a discretion as to the relief to be granted. To require that the motion for sale should in all cases be a separate motion, leads to this absurdity, that the complainant is compelled to ask for a partition (by which is generally understood a partition by metes and bounds, or by times of enjoyment, c.), which he does not want, and then to ask for what he really does want, by motion. It is certainly most in conformity with the course of equity that the complainant should ask in his bill for the relief he really wishes. A prayer by separate motion for different relief from that prayed in the bill could only be allowed by force of the statute. The complainants propose to amend by inserting a prayer for partition, and inasmuch as partition cannot be made without metes and bounds (which they aver), that the estate may be sold, c.

The respondents, by Mr. Markland, propose that the complainants be required to amend by inserting a prayer for partition and a motion (eo nomine) for sale, but to strike out all relating to discovery and answer as to the money expended, or facts rendering a sale necessary.

I believe the whole court consider the amendments proposed by the complainants correct, as far as they go, and it cannot be material whether the party uses the word move or the wordpray, in his motion.

The allegation about repairs may be material, as showing that the house constitutes a large part of the whole value, and the other allegations may be material, in showing the necessity of a sale. The respondent, if he wishes to insist on the question of immateriality, may do so by his demurrer, or he may decline to answer and have the point decided on exceptions to his answer. If the defendant does not answer, the complainant may proceed to prove his bill. Daniel's Ch. Prac. 500, and English Ch. Orders of 1845; or, secondly, he might have a decree pro confesso, which could only be considered as applying to the facts alleged which were necessary to establish the right to relief. But the respondents say they should not be required to answer as to any facts alleged which might or not make a sale proper; and this not on the ground of immateriality, but because, as we understand Mr. Markland to contend, inasmuch as, if the motion were made separately from the bill, the respondent would not be obliged to answer, the complainant ought not to gain an advantage and be enabled to compel an answer, by making the motion in his bill. But as our law now stands, the respondent may be compelled to testify on the motion, or at any stage of the bill, as to any facts in her knowledge, and there seems no reason why she should not answer the same matters if alleged in the bill. The question of sale is the only one in dispute, there being no intimation that there is any dispute as to the shares. And as the court have unanimously held that the legislature intended, or rather must have intended, that the complainant might ask for a sale in his bill, it seems more in conformity with that wisdom which we are bound to suppose actuates the legislature, to hold that if they allow it to be asked for in the bill they intended it to constitute a part of the bill, and to be followed by the reasonable consequences of its being so, and to have the rules of equity practice applied to it, — i.e. that the bill might contain the allegations to support it and that they should be answered. But upon the decree as settled by the majority of the court, it seems to me that we have this inconsistency, that we allow the prayer for sale and allegations to sustain it to be inserted into a bill containing a prayer for answer. We declare that they are properly in the bill, and the rule requires an answer, unless we allow the prayer for answer to be amended also. The praying for sale in the bill does not prevent the respondent applying for a sale in any particular mode, or for partition of part and sale of the remainder.