59 Vt. 646 | Vt. | 1887
The opinion of the court was delivered by
The parties are tenants in common of a lot of furniture situate in the Summit House at Boxbury, and the bill is brought to procure a division of it, or for a decree that
It is found by the master that on May 19th, 1874, James P. Warner owned the Summit House and the furniture therein and that on that day he sold the same to Lucie Wilson, and in part payment for it took her and her husband, Thomas Wilson’s, notes for the sum of 6136.87 dollars, secured by mortgage on the real estate then sold. On the 7th of February, 1876, the Wilsons sold said real estate and furniture to the orator, who, as a part of the consideration for his purchase, assumed and agreed to pay to Warner the amount then due on the notes given by the Wilsons to him and secured by the mortgage given by them on the 19th of May, 1874. On the 2d of October, 1876, the orator, having paid nothing on the debt due to Warner, sold and conveyed the property real and personal to Doras L. Spaulding & John E. D. Colby, they agreeing to assume and pay the aforesaid debt to Warner. Warner instituted proceedings to foreclose his mortgage and obtained a decree, which expired on the 2d of April,-1878. Warner died about the 1st of May, 1877, and his Avife, the defendant, was appointed administratrix, and as heir and purchaser became owner of the entire estate. The defendant acquired title to an undivided half of the furniture in controversy on the 11th of December, 1878, and has ever since had the exclusive possession of the whole of it; the orator acquired the title to the other half in March, 1884. Commissioners were appointed upon Warner’s estate, and the orator presented before them a large claim, consisting of notes and accounts, and the administratrix presented in offset- a claim against him consisting of notes and accounts. The commissioners found and reported a balance due to the orator of 346.30 dollars. An appeal was taken from that allowance.
Upon the hearing before the referees by whom the case aatRs heard, the administratrix, in addition to the claims presented by her before the commissioners, presented a claim that the
The rules and proceedings which obtain at common law and which are provided by statute on the subject of partition relate exclusively to real estate. But where there is an inadequacy of legal remedy or there is an absence of it, a court of equity has jurisdiction, and, where a partition is not practicable, will order a sale. 3 Pomeroy Eq. Jur. sec. 1391.
It is by reason of the want of legal remedy that the orator has sought the aid of a court of equity. The first question to be determined in this court is to ascertain if the property is of such a character and so situated that it can be divided, and if it can be, to order a division to be made, and that an account be taken to ascertain what should be paid for the use of the same ; and if the property can not be divided, to order a sale and the proceeds equitably divided.
We can not find any warrant in the law to justify a decree that one co-tenant of property owned in common should pay his co-tenant for his interest in the common property, until it is ascertained that it is impracticable to divide it. In the view we have taken of the case it is not necessary to consider the question of the admissibility of the evidence of Colby.
The decree of the Court of Chancery is reversed, and cause remanded with mandate that it be referred to a master to ascertain and report the character and situation of the furniture described in the bill, and if it is practicable to make a division of the same ; and if so, how it should be.divided, and what" sum the defendant should pay for the use of the orator’s portion of it during the time it has been in the possession of the defendant, and for any loss or destruction of the same.