* Johnson v. Olmsted. owned by two ested, order the sale of any real estate, or more persons, *whenever, in the opinion of the court, a sale will better promote the interest of the parties in interest. Sec. 42. The Superior Court, as a court of equity, may, upon the petition of any person interested, order the sale of any personal estate owned by two or more persons, whenever in the opinion of the court a sale will better promote the interest of the parties in interest." Here nothing is said about a sale being better than a partition, or any intimation that such a meaning is intended. The same expression is used as applicable both to real and personal estate, and must have the same construction in both sections. Now in the revision of 1875, it will be observed that estate either real or personal, owned by tenants in common, may be sold whenever it is for the interests of the owners that it should be. The same rule is applicable to both, and the same meaning must be given in each case. It is simply impossible that in one sentence of this kind the real estate may be sold without regard to the real interests of the owners. simply because a partition cannot be made, but personal property can be sold only when the best interests of the owners require it. It seems to us that these considerations show conclusively that the proper construction of this section must be as the defendants claim it, and that, to authorize a sale, the facts must show that it is more for the interests of the owners than to remain as they are. 2. The expression "interests of the owners," means pecuniary interest; that is, benefit or advantage. It must be better for the owners in some way to have the property sold, than to have it kept as it is; if a sale would be an injury to the owners, it cannot be for their interests. The fact that property can be more easily managed if owned by one than by several, that there is more difficulty in dividing up the net rents among a large number of owners than among a few, or any other mere matter of convenience, is of no importance whatever, simply because the legislature has not seen fit to make it so, unless the interests of the owners are in some way affected. It is a very great exercise Johnson v. Olmsted. of authority for the legislature to deprive a person of his interest in land against his will; to have such property sold and oblige the owners to take money which they may be unable to invest or ignorant how to take care of. Hayden v. Denslow, 27 Conn., 335; Ford v. Kirk, 41 id., 9. Nothing could justify such an extreme exercise of power, but some necessity involving actual injury to the owners; no mere inconvenience or possibility of future injury would be enough. Potter v. Munson, 40 Conn., 473; Hartmann v. Hartmann, 59 Ill., 103. It differs materially from a partition. If four persons own a piece of land in common, and one quarter is given to each of them, they are substantially as they were before. The property is the same, the interest is the same; all the change is, that each one owns a divided quarter of the whole instead of an undivided quarter. It can be rented, used or sold to as much advantage, and the increase in its value if in a favorable position would be the same. But in the case of a sale all this is changed. The owners are entirely deprived of their property. Its very nature is changed. A sale is forced perhaps at a time and in a manner most unfavorable to the owners. An investment of perfect safety, paying perhaps ten per cent., and steadily increasing in value, is arbitrarily changed into a definite sum of cash, perhaps owned by minors, women, or persons unaccustomed to investment, and must be again. invested at every risk, and even if a safe investment can be found at a very small rate of interest. These are sufficient reasons to warrant a court in supposing that the legislature could not have intended to authorize a sale unless for reasons of necessity, and also for strictly constru ing any statute granting a power to sell. Second. As to a sale of the estate of a tenant by the curtesy. The statute, though broad in its terms, was not intended to affect all cases of real estate held in common, regardless of the purposes for which it is held, or the rights to be invaded by a sale. Two kinds of property are beyond its grasp.-(1.) Real estate held for public and charitable Wilson v. Peck, 39 Conn., 54; Potter v. Munson, 40 uses. Johnson v. Olmsted. id., 473.-(2.) Real estate held for private uses where any owner has such an interest as the law especially protects, as in the case of tenants in tail, tenants in dower, and tenants by the curtesy, lands held by husband and wife, etc. Cubbage v. Franklin, 62 Misso., 364; Miller v. Miller, 9 Abb. Prac. R., N. S., 444; Parks v. Siler, 76 N. Car., 191; Way v. Way, 42 Conn., 52. A. P. Hyde and W. W. Hyde, for defendants in error. PARDEE, J. No person can be compelled to remain the owner with another of real estate, not even if he become such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afforded to every owner with another relief by way of partition, and this regardless alike of the difficulties attending separation and the consequences to his associate. Rights to the use of running water, rights to dig ores, have been declared to be subject to this law. But inasmuch as it might sometimes happen that by partition the property would be practically sacrificed, the statute has opened a way of escape from such a result. It permits a court of equity to order a sale when in its opinion a sale will better promote the interest of the owners. Therefore since its enactment there have been two modes of relief within the power of the court-partition and sale. Every owner with another is entitled to separate ownership by one of these; by partition first and always, if that is possible; if it is not, then by sale; every petitioner for a sale assuming the burden of proving partition impossible; and if upon such petition the impossibility of partition is proven, the court is as much bound to order a sale as it would have been to order a partition upon a prayer for it and upon proof that it could be conveniently and equitably made. If upon a petition for a sale it is proven both that partition is impossible and that a sale would result in a Johnson v. Olmsted. diminution of income, the petitioner is not for that reason to be shut up to continued joint ownership; he must have leave to go out of the possible door notwithstanding that diminution; upon such petition the most that can be insisted upon by plaintiff or defendant is that the undeniable right to severalty in ownership shall be secured by the least injurious of the two specified modes. The statute has been thus interpreted by this court. In Spencer v. Waterman, 36 Conn., 342, it is said that it permits a sale only "in cases where the interest of all parties concerned would be more promoted by a sale than by a division." In Ford v. Kirk, 41 Conn., 9, it is said that by the express terms of the statute a sale is warranted only when it "will better promote the interest of the parties in interest, that is, will better promote it than a partition." And a former statute permitted a sale "whenever, in the opinion of the court, a sale will better promote the interest of all parties than a partition, and whenever in the opinion of the court the property cannot be conveniently occupied in common." It is claimed that this statute restricted the power of the court to order a sale to cases where the property could not be beneficially used in joint ownership. But in Richardson v. Monson, 23 Conn., 94, it is said that it authorized a sale "whenever partition cannot conveniently be made in any other way. And indeed, by the principles of the common law, recognized by the statute 31 and 32 Henry VIII., this right of partition enters into the very nature of the title of estates holden in common and is inseparable from them. The only question is how can it best be made? The statute giving the power of sale introduces as we think no new principle; it provides only for an emergency, when a division cannot well be made in any other way." The fact that one of the defendants is tenant by the curtesy initiate is no bar to an order of sale; he and his wife are made parties and are within the jurisdiction of the court; in them together is the whole of an undivided part, a well-defined and tangible estate; clearly within the reason Clement's Appeal from Probate. and the language of our all-inclusive statute. And, as the money is to stand for the land, the court can make all necessary orders for the protection of his rights, if he should ever become tenant by the curtesy consummate, as well as for the protection of hers. There is no error in the judgment complained of. In this opinion the other judges concurred. PERCIVAL W. CLEMENT AND OTHERS' APPEAL FROM An appeal from the allowance by a probate court of B's account as executor involved two questions in which he had a personal interest, one of which was decided by the appellate court in his favor and one against him, and a third question in which he had no interest. On the settlement of his final account he charged the estate for his services and expenses in defending against the appeal. Held that he was not entitled to an allowance of the whole amount, but that it should be apportioned between the executor and the estate with reference to the separate matters involved and the decision upon them. The court in that case awarded costs against B to be paid out of the estate. B was sued in the Superior Court as trustee and defended, among other 49 519 61 138 |