293 A.2d 12 | Conn. Super. Ct. | 1971
On April 15, 1968, Albert Terwilliger, while he was still alive, brought this action against the defendant for partition of the real estate described in the complaint. On February 11, 1969, Albert Terwilliger died, and the executor of his estate has been substituted as the party plaintiff.
The case has been submitted for decision of the court upon the pleadings, including a stipulation for judgment of partition dated December 30, 1968, and stipulations of facts, entered into by the present parties through their attorneys, dated May 27, 1970, and July 29, 1970, both of which are on file. The agreed facts evidence that Albert and the defendant were husband and wife at the time of his death. On April 19, 1952, they acquired title to the property as joint tenants under a deed providing for rights of survivorship and held title in this manner at Albert's death. On April 15, 1968, by writ, summons and complaint dated April 1, 1968, Albert instituted this partition action against his wife, the defendant, and on April 5, 1968, a notice of lis pendens was recorded in the office of the town clerk of Weston, in which town the property is located. The notice *467 was in proper form, describing the property and giving notice of the pendency of this partition action.
On December 30, 1968, during the pendency of this action and before Albert's death, Albert and the defendant entered into a written "Stipulation" signed by their respective attorneys, who filed the stipulation with the court on January 3, 1969. Prior to entry of judgment, Albert died. He and the defendant had been estranged and had not been living together for a long period of time before institution of the partition action and the entering into of the stipulation for judgment.
After Albert's death, the defendant filed an answer, with permission of the court. In her answer the defendant admits the allegations of the complaint requesting partition. By way of special defenses, the defendant claims that the survivorship provisions of the deed to Albert and to her effected a vesting of the entire title to the premises in her immediately upon Albert's death and that his death also terminated this partition action without any right in his executor, the plaintiff, to pursue the action to conclusion. The defendant prays that the action be dismissed.
In his reply to the special defense, the plaintiff alleges that the stipulation during Albert's life for entry of judgment constituted a binding agreement which survived Albert's death. The plaintiff claims further that this agreement terminated the survivorship provisions of the deed and that Albert's interest never accrued to the defendant.
The plaintiff asserts that the partition action survives. The defendant claims that the action has abated. The stipulation of facts confirms that the court approved the stipulation which agreed to the entry of a judgment of partition by sale. No further proceedings beyond this point occurred until the *468 filing of the special defenses, after Albert's death. The parties at or about this time requested the court to postpone its decision and entry of judgment in order to permit negotiations to continue, with a view to a possible settlement of the action between Albert's executor and the defendant. Such negotiations failed, and the court was requested to decide the issues as submitted on the basis of the pleadings and all stipulations as on file.
It is apparent, however, that a judgment based on the stipulation for judgment could and should have entered during Albert's lifetime. The stipulation incorporated in it the language of §
It is conceded by the defendant and the plaintiff that a joint tenancy with right of survivorship had existed during Albert's lifetime under the provisions of §
Section
The institution of the partition action was an unequivocal act by Albert to assert his own legal interest in the property and his intention to sever it from the joint tenancy. The action alleges a claim which, in the court's opinion, attaches in rem to the joint tenancy in a manner similar to the lien of a third party as provided for in §
The court further finds that under the terms of the stipulation for entry of judgment Albert and the defendant during their joint lives entered into a legally enforceable contract to settle their partition action by entry of judgment of partition and sale. General Statutes §
A joint tenancy may be terminated by mutual agreement or by any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interests as belonging to them in common. Duncan v. Suhy,
For the foregoing reasons, the defendant's prayer for dismissal of the action is denied. The stipulation of Albert and the defendant dated December 30, 1968, is approved in its entirety. The court finds that the plaintiff and the defendant together own the *471 fee simple of the premises which are the subject of this partition action and that a sale of the entire property in accordance with the stipulation will better promote the interests of these owners.
Judgment of partition by sale may enter accordingly.