Linsley v. Hubbard

44 Conn. 109 | Conn. | 1876

Park, C. J.

The controversy in this case calls in question the constitutionality of the resolution passed by the General Assembly in the year 1875, authorizing the sale of the land in which the petitioners have a contingent interest, and the investment of the proceeds for the benefit of all parties concerned.

It is said by the petitioners that this resolution deprives them of their interest in the property against their will, and is therefore void, not only as opposed to natural justice, but ás in conflict with the provisions of the constitution of the state. It was held by this court in' the case of Richardson v. Monson, 23 Conn., 94, that the statute which authorizes the sale of lands held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot conveniently be made in any other way, is constitutional. That case was ably discussed by counsel, who offered the same arguments against the constitutionality of the statute, which have been urged upon our consideration' against the validity of this resolution. It is difficult to see any distinction in principle between the two cases. When a sale is made of real estate held in joint tenancy, the tenant opposed to the sale is as much deprived of his estate by the change which is made, as these petitioners are of their property, -by the change authorized by this resolution. In either case the parties are not subjected to a loss of their property. It is simply changed from one kind of estate to another. In the case of Sohier v. Massachusetts General Hospital, 3 Cush., 496, the court say, in a case like the present, “ The legislature authorizes the sale, taking care that the proceeds shall go to the trustees, for the use and benefit of those having the life estate, and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real into personal estate, for the benefit of all parties in interest. This part of the resolve therefore is within the scope of the powers exercised from the earliest times, and repeatedly adjudged to be rightfully exercised, by the legislature.” In the case of Rice v. Rarkman, 16 Mass., 326, it was held that the legislature might rightfully authorize a tenant for life to sell the whole estate, thus converting real into personal property, provision being made for securing the interests of those in remainder. We think the decision in the case of Richardson v. Monson, which we have referred to, must be regarded as decisive of this case.

We think the resolution in question constitutional, and not opposed to natural justice; and we therefore advise the Supe- • rior Court to dismiss the petition.

In this opinion Carpenter, Pardee and Looms, Js., concurred; Poster, J., dissented.