119 A. 361 | Conn. | 1923
The complaint asks, by way of equitable relief, for the partition among the cotenants of an island in Long Island Sound opposite the town of Greenwich, in quantity about eighteen acres, known as Great Captain's Island, or, if partition cannot be had without material injury to the rights of cotenants, then a sale of the premises and a division of the proceeds between the parties, according to their rights.
Certain cotenants pleaded in defense, in their answer, that the interest in the Island of certain parties came to them by devise or descent from individuals whose estates had never been administered in Connecticut. The plaintiff, in effect, denied these allegations. The committee found facts from which it might reasonably have been concluded by the court that these allegations in defense were established.
The report disclosed that the ownership of the parties, respectively, in said estate is in fee simple, in the following proportions: —
George R. Chester 19344/28800 Almira Lyon 5812/28800 William A. Sours 1674/28800 Eva S. Slater 1674/28800 Leonard M. Searles 148/28800 Benjamin Mills, Jr. 37/28800 Marie A. Mills 37/28800 Theodore Mills 37/28800 Florence A. Mills 27/28800The court further concluded that under the committee's finding a sale would better promote the interests *395 of the owners than a partition, and thereupon adjudged that the property be sold.
The action, with its alternative claims for relief, was brought under the provisions of General Statutes, §§ 6067 and 6073.
Section 6067 reads in part as follows: "Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real estate held in joint tenancy, tenancy in common or coparcenary. . . ." Section 6073 reads in part as follows: "Courts of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners. . . ."
The appellants claim that where substantial interests in the property request a partition instead of a sale, a sale cannot equitably be ordered. "Partition of lands, held in common, is matter of right." Beecher v.Beecher,
The foregoing discussion disposes of all the reasons of appeal except the following: "The court erred and mistook the law in denying the motion of said defendants [Slater and Sours] to dismiss and erase said action from the docket." The ground for this motion was that it appeared "from the pleadings that all the right, title and interest which belong or may belong to some of the defendants in said action would come to them from estates of decedents, and that said estates have never been administered in the State of Connecticut and have never been settled or distributed in this State and the debts and liabilities of said estates have never been satisfied." The court denied this motion because an examination of the pleadings disclosed that, *397
while certain defendants had pleaded in effect that the interest of certain parties in the Island came to them by devise or descent from predecessors in title whose estates had never been administered in Connecticut, and although the defendant Chester had admitted these allegations in part, yet the plaintiff had denied them, and therefore it could not be said that the truth of the allegations "appears from the pleadings." The reply of the plaintiff, of "no knowledge or information sufficient to form a belief" as to these allegations, is in effect a denial. Banks v. Moshier,
The reasons of appeal do not contain any claim of *398 error on the part of the court in rendering judgment upon the report, based upon any refusal of the court to hold that such allegations were established by the facts found, or upon any ruling of the court as to the effect of the proof of such allegations under § 6079. There is not, therefore, before us any reason of appeal permitting a consideration of these questions.
There is no error.
In this opinion the other judges concurred.