Sean Solway et al. v. Bridget Ray et al. (2013)

MEMORANDUM OF DECISION

The plaintiffs, Sean Solway, David Solway and Eamonn Solway, move for summary judgment on the first count ¹ of their complaint brought against the defendants, Bridget Ray and Rubin Gabor Csoszor.   In that count, the plaintiffs seek a judgment of partition concerning real property known as 149 Riverside Avenue, Westport, Connecticut.

The following facts are undisputed.   The parties own the property as tenants in common.   The plaintiffs are the children of Bridget Ray. Each child owns a one-sixth interest in the property, and Ray owns the remaining three-sixths interest.   Additionally, Ray was granted a life use in the property.

The plaintiffs move for summary judgment claiming, pursuant to General Statutes § 52–500,² they are entitled to a judgment of partition by sale as a matter of law.   The defendants oppose the motion claiming that a written agreement entered into by the parties on August 2, 1988, along with a subsequent stipulation in an earlier civil action, precludes the plaintiffs from seeking a partition of the property.³

I

Penfield v. Jarvis, 175 Conn. 463, 399 A.2d 1280 (1978), provides a concise explanation of the right of partition, as follows.  “Compulsory partition procedures, which originated under early English law, were initially available only to coparceners—those who had become concurrent owners by way of descent and who, therefore, were never voluntary participants in the creation of the concurrent ownership.   Freeman, Cotenancy & Partition (2d Ed., 1886) § 420.   In the sixteenth century, this right to partition in kind was, by statute, made available to joint tenants and tenants in common of estates of inheritance who had a present right to possession of the property.   31 Henry VIII, c. 1 (1539).   In the following year, the remedy of partition was expressly extended to include those holding land in joint or common tenancy for life or for a term of years, provided that such partition would not be prejudicial to any person not a party to the action.   32 Henry VIII, c. 32 (1540).   Shortly thereafter, an equitable procedure for partition in kind evolved in the Courts of Chancery, and its demonstrated superiorities caused it rapidly to supplant the procedure initiated by a common-law writ.   4 Restatement, 2 Property c. 11, p. 654.” ⁴  Id., 466–67.

“Both at law and in equity, however, the general rule was—and is—that a joint tenant or tenant in common must have either actual possession or an immediate right to possession in order to maintain an action for partition ․ Such a rule is understandable in the context of the problem to which the remedy by partition was directed:  avoiding the conflicts which might arise if each cotenant asserted the right to be in possession of every part of the lands of the cotenancy.”  (Citations omitted.)  Id., 467.

“The first Connecticut statute providing an absolute right to partition by physical division was enacted in 1720;  Statutes, 1796, p. 258;  the substance of which has survived virtually intact to the present day with only insignificant changes in the wording of the original enactment.” ⁵  Id., 468.  “[T]here are numerous decisions by this court stressing that this statutory right to partition is absolute and that the difficulty of making partition and inconvenience to other tenants are not grounds for denying the remedy.”  Id., 468–69.  “[A] review of the traditional application of the partition remedy supports the conclusion that, under our statute, a party could obtain partition only to the extent of the interest actually held.”  Id., 469.

“Due to the frequent impracticality inherent in actual division, however, all states, except Maine, have, by statute, expanded the right to partition to permit a partition by sale under certain circumstances ... In Connecticut, an act extending the power of our courts to order a sale in partition proceedings was enacted in 1844 ․ Prior to that time, the court had no power to order a sale of lands held in common;  if the parties could not agree to a voluntary division, the only remedy was physical partition by the court upon the application of a party.   The early decisions of this court dealing with the new statutory remedy of partition by sale emphasized that [t]he statute giving the power of sale introduces ․ no new principle;  it provides only for an emergency, when a division cannot be well made, in any other way.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Id., 470–71.

“The right to partition by sale was extended by statute in 1876 ․ The 1876 statute, now incorporated in § 52–500 of the General Statutes, provided, in part, that the right to partition by sale ‘shall extend to and include land owned by two or more persons when the whole or a part of said lands is vested in any person for life, with remainder to his heirs, general or special, or, on failure of such heirs, to any other person ․ [a]nd a conveyance made in pursuance of a decree ordering a sale of such land ․ shall bind the person entitled to the life estate, and his legal heirs, or such other person having a remainder interest in the lands.’  “ Id., 471–72.  “[O]nly those life tenants specifically described in the provisions of § 52–500 of the General Statutes have the right to compel a partition by sale against remaindermen or against co-life tenants so as to be binding beyond the term of the life estate ․” Id., 473–74.   Under § 52–495 of the Connecticut General Statutes this Court, as a Court of equity, may “upon the Complaint of any person interested” order partition of any real property held in tenancy in common.   Under § 52–500 of the Connecticut General Statutes this Court may “upon the complaint of any person interested order the sale of any property, real or personal, owned by two or more persons when, in the opinion of the Court, a sale will better promote the interest of the owners.

“It has been said that Connecticut General Statutes § 52–495 confers an absolute right of partition upon any person holding real property as a tenant in common with others.   This right derives from the principle that no person can be compelled to remain the owner of real property with another ․ If the Court finds that a sale of the property would better promote the interests of the owners, the Court may order a sale under Connecticut General Statutes § 52–500.   The law of Connecticut has long presumed that a partition in kind would be in the best interests of the owners, and the burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests ․ A partition by sale should only be ordered when two conditions are satisfied:  (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable, and (2) upon a comparison of the consequences of each type of partition, the interests of the owners would be better promoted by a partition of sale ․ In ordering a partition the Court must examine all relevant circumstances and balance the equities.  (Citations omitted;  internal quotation marks omitted.)   Jones v. Jones, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 03 0194133 (August 16, 2004, Jennings, J.).

General Statutes § 52–495, concerning the partition of joint and common estates, provides as follows:  “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail.   The court may appoint a committee to partition any such property.   Any decrees partitioning entailed estates shall bind the parties and all persons who thereafter claim title to the property as heirs of their bodies.”

II

The effect of the statutory scheme is that a tenant in common has a right to a partition of real property in accordance with § 52–495, and, under certain limited circumstances set forth in § 52–500, a court can order a sale of the property as opposed to an in-kind partition.   In this action, the defendants seek summary judgment on the issues of the right to partition and the form of partition.   The court, however, will treat this motion as one seeking a partial summary judgment only on the issue of the right to a partition.

In view of the foregoing, the issue to be determined is whether the plaintiffs and the defendants entered into an agreement and subsequent stipulation that precludes the plaintiffs from seeking a partition.   As will be discussed, the court concludes that the plaintiffs are not barred by the terms of the agreement and stipulation and, therefore, the plaintiffs' summary judgment motion is granted to the extent that they have a right to a partition of the real property.

On August 2, 1988, a written agreement was executed by the plaintiffs ⁶ in the present action, and Robert Ray and Bridget Ray.⁷ The agreement provides, among other things, that the Rays have a right to “exclusive occupancy of the residence ․ for life and the life of the survivor of them.” ⁸  Attached to and referenced in the plaintiffs' complaint is a copy of a stipulation filed in an earlier action involving Sean Solway, Eamonn Solway and Bridget Ray.⁹ Therein, Ray agreed to quitclaim a one-sixth interest in the property to Sean and a one-sixth interest to Eamonn.   Further, Sean and Eamonn agreed that upon the death of their mother, Ray, they would permit Rubin Gabor Csoszor, the child of Kathleen Solway Csoszor, to occupy the premises “for no less than [180] days after the death of” Ray.

A fair reading of the plaintiffs' memorandum in support of their summary judgment motion shows that they base their motion solely on § 52–500, which authorizes a court to order a sale of partitioned property when “a sale will better promote the interests of the owners.”   In opposing the motion, the defendants contend that the parties agreed in the written agreement and subsequent court filed stipulation to preclude any action for partition.   More specifically, the defendants claim that the provisions that Ray has a life use of the property and that Rubin Gabor Csoszor has a right to occupy the property for six months after her death estop the plaintiffs from partitioning the property and evidence the intent of the parties to do so.   They cite to the case of Rayhol v. Holland, 110 Conn. 516, 148 A.358 (1930), in support of their position.   That case is distinguishable.

The facts underlying our Supreme Court's decision in Rayhol are complex.   What is relevant to the determination of the present motion is that the residential real property at issue in Rayhol was subject to a declaration of trust.  Id., 521–22.   Among other things, the agreement provided that title to the property was to be transferred to a certain trust company as trustee, assuming that it consented to the position, and that a deed so transferring the property was to be executed.  Id., 524–25.

The trial court rendered judgment for the partition of the property by sale in favor of the plaintiff on its complaint.  Id., 527.   The court concluded that the declaration of trust did not preclude the plaintiff from seeking a petition for partition of the property.  Id., 522.

The Supreme Court reversed the decision of the trial court and directed that judgment enter in favor of the named defendant.   The Court held that “the parties may enter into a reasonable agreement which will expressly or impliedly debar them from seeking a partition.”  Id., 526.   The Court concluded that the provisions of the trust agreement demonstrated that an action for a partition of the property was precluded.  Id., 527.

The present action does not involve a trust agreement.   Rather, the agreement and subsequent stipulation merely give Bridget Ray a life use of the property, and provide that Rubin Gabor Csoszar may remain on the property for a period of six months after her death.   The agreement and stipulation do not expressly or impliedly “debar” the plaintiffs from bringing an action for partition of the property.   In this regard, § 52–500 provides that a court may order a partition of property in which a person has a life estate and that the judgment “shall bind the person entitled to the life estate and his legal heirs and any other person having a remainder interest in the lands.”  General Statutes § 52–500(b).  Therefore, Ray would be bound by any judgment of partition, as would any person with a remainder interest.   See Caruso v. Caruso, Superior Court, judicial district of New Haven, Docket No. CV 02 0465379 (February 19, 2003, Celotto, J.) [34 Conn. L. Rptr. 136] (motion to dismiss denied because the court had subject matter jurisdiction where § 52–500 authorizes a “court to order a partition by sale of the property subject to a life estate).

Summary judgment limited to the issue of the plaintiffs' right to a partition of the property is appropriate in partition actions.¹⁰  The plaintiffs, owners of the property as tenants in common with the defendants, have met their burden of showing that there are no genuine issue of material fact concerning their right to a judgment for partition as a matter of law in accordance with General Statutes § 52–495.   The defendants' first and second special defenses, which claim that the agreement and stipulation preclude the present action, fail.

III

In view of the foregoing, the plaintiff's motion for summary judgment (116.00) is granted only to the extent that the court orders a partition of the property located at 149 Riverside Drive, Westport, Connecticut.   A further hearing will be held concerning the whether the partition will be in kind or by sale.   The parties shall schedule such a hearing with the court.

TYMA, J.

FOOTNOTES

FN1. The plaintiffs have also brought counts claiming an accounting and breach of contract.   The plaintiffs' motion is not directed to those counts..  FN1. The plaintiffs have also brought counts claiming an accounting and breach of contract.   The plaintiffs' motion is not directed to those counts.

FN2. General Statutes § 52–500 provides as follows:  “(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, 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.   If the court determines that one or more of the persons owning such real or personal property have only a minimal interest in such property and a sale would not promote the interests of the owners, the court may order such equitable distribution of such property, with payment of just compensation to the owners of such minimal interest, as will better promote the interests of the owners.(b) The provisions of this section shall extend to and include land owned by two or more persons, when the whole or a part of the land is vested in any person for life with remainder to his heirs, general or special, or, on failure of the heirs, to any other person, whether the land, or any part thereof, is held in trust or otherwise.   A conveyance made pursuant to a decree ordering a sale of the land shall vest the title in the purchaser thereof, and shall bind the person entitled to the life estate and his legal heirs and any other person having a remainder interest in the lands.   The court issuing the decree shall make such order in relation to the investment of the proceeds of the sale as it deems necessary for the security of all persons having any interest in such land.”.  FN2. General Statutes § 52–500 provides as follows:  “(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, 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.   If the court determines that one or more of the persons owning such real or personal property have only a minimal interest in such property and a sale would not promote the interests of the owners, the court may order such equitable distribution of such property, with payment of just compensation to the owners of such minimal interest, as will better promote the interests of the owners.(b) The provisions of this section shall extend to and include land owned by two or more persons, when the whole or a part of the land is vested in any person for life with remainder to his heirs, general or special, or, on failure of the heirs, to any other person, whether the land, or any part thereof, is held in trust or otherwise.   A conveyance made pursuant to a decree ordering a sale of the land shall vest the title in the purchaser thereof, and shall bind the person entitled to the life estate and his legal heirs and any other person having a remainder interest in the lands.   The court issuing the decree shall make such order in relation to the investment of the proceeds of the sale as it deems necessary for the security of all persons having any interest in such land.”

FN3. The defendants also set forth this claim in their first and second special defense..  FN3. The defendants also set forth this claim in their first and second special defense.

FN4. “The following were considered the chief advantages of proceedings in Chancery for the partition of property:  ‘Courts of equity deal with complicated titles with greater ease and efficiency than courts of law;  courts of equity compel the execution of conveyances to each cotenant, ․ and thus provide him with a permanent and satisfactory muniment of title;  they may decree a pecuniary compensation to one of the parties for owelty, or equality of partition;  they may compel the cotenants to account with one another, in regard to rents and profits received, and improvements made by either of them ․;  and the parties may compel a discovery whenever it is necessary to enable them to properly present their title.   Freeman, Cotenancy & Partition § 425, p. 553 (1886).’  “ Penfield v. Jarvis, supra, 175 Conn. 467 n.4..  FN4. “The following were considered the chief advantages of proceedings in Chancery for the partition of property:  ‘Courts of equity deal with complicated titles with greater ease and efficiency than courts of law;  courts of equity compel the execution of conveyances to each cotenant, ․ and thus provide him with a permanent and satisfactory muniment of title;  they may decree a pecuniary compensation to one of the parties for owelty, or equality of partition;  they may compel the cotenants to account with one another, in regard to rents and profits received, and improvements made by either of them ․;  and the parties may compel a discovery whenever it is necessary to enable them to properly present their title.   Freeman, Cotenancy & Partition § 425, p. 553 (1886).’  “ Penfield v. Jarvis, supra, 175 Conn. 467 n.4.

FN5. “An act for the partition of lands, enacted in October 1720, read, in relevant part, as follows:  ‘That all Persons having or holding;  or that shall at any Time hereafter have or hold any Lands, Tenements, or Hereditaments as Coparceners, Joint–Tenants, or Tenants in Common, may be compelled by Writ of Partition to divide the same, where the Partners cannot agree to make Partition among themselves.’   Compare the present § 52–495 of the General Statutes.”  Penfield v. Jarvis, supra, 175 Conn. 468 n.5..  FN5. “An act for the partition of lands, enacted in October 1720, read, in relevant part, as follows:  ‘That all Persons having or holding;  or that shall at any Time hereafter have or hold any Lands, Tenements, or Hereditaments as Coparceners, Joint–Tenants, or Tenants in Common, may be compelled by Writ of Partition to divide the same, where the Partners cannot agree to make Partition among themselves.’   Compare the present § 52–495 of the General Statutes.”  Penfield v. Jarvis, supra, 175 Conn. 468 n.5.

FN6. John Solway as referenced in the agreement is also known as Sean Solway, which is the name under which he appears in the present action..  FN6. John Solway as referenced in the agreement is also known as Sean Solway, which is the name under which he appears in the present action.

FN7. As stated in the agreement, the plaintiffs are the children of Bridget Ray and Reuban I.H. Solway..  FN7. As stated in the agreement, the plaintiffs are the children of Bridget Ray and Reuban I.H. Solway.

FN8. Bridget Ray, who presently owns a three-sixths interest in the property, acquired an additional two-sixths interest upon the death of Robert Ray as provided in the agreement..  FN8. Bridget Ray, who presently owns a three-sixths interest in the property, acquired an additional two-sixths interest upon the death of Robert Ray as provided in the agreement.

FN9. The stipulation is dated February 20, 2008..  FN9. The stipulation is dated February 20, 2008.

FN10. In Rubin v. Labow, Superior Court, judicial district of Fairfield, Docket No. CV 79 0178886 (February 7, 1994, Fuller, J.), the plaintiff sought partition pursuant to § 52–495 and then moved for summary judgment, which the court granted.   The court also ordered an evidentiary hearing, to be held at a later date, to determine whether partition in kind or by sale was appropriate.   The court reasoned:  “The burden of proof that a partition by sale should occur under § 52–500 is upon the party requesting a sale to show that it is the better remedy.  Wilcox v. Willard Shopping Center Associates, supra, 326.   This motion is not an appropriate time to determine that question.   The plaintiff is entitled to summary judgment on the right to partition since the defenses are insufficient to prevent it, and under the clear and relevant facts in this case the plaintiff is entitled to judgment as a matter of law.   However, the parties have the right to present evidence to the court and argue in favor of either a partition in kind or a petition by sale.”  Id.In Jones v. Jones, Superior Court, judicial district of Stamford, Docket No. CV 03 0194133 (August 16, 2004, Jennings, J.), the court granted summary judgment for partition, but did not decide which method of partition was appropriate, reserving this decision for a later date after a hearing.   Likewise, in Ingersol v. Hickey, Superior Court, judicial district of New London, Docket No. 4002950 (September 21, 2005, Devine J.), a plaintiff with a 23/26 interest in a parcel sought partition and moved for summary judgment, which the court granted because owners have an absolute right to partition.   The court reserved for a later date, however, its ruling on whether to partition in kind or by sale, electing to hold a separate hearing on that matter.   Finally, in Duhaime v. Duhaime, Superior Court, judicial district of Hartford, Docket No. 07 5009562 (May 9, 2008, Satter, J.T.R.), the court ordered partition by private sale after previously having granted summary judgment as to partition only..  FN10. In Rubin v. Labow, Superior Court, judicial district of Fairfield, Docket No. CV 79 0178886 (February 7, 1994, Fuller, J.), the plaintiff sought partition pursuant to § 52–495 and then moved for summary judgment, which the court granted.   The court also ordered an evidentiary hearing, to be held at a later date, to determine whether partition in kind or by sale was appropriate.   The court reasoned:  “The burden of proof that a partition by sale should occur under § 52–500 is upon the party requesting a sale to show that it is the better remedy.  Wilcox v. Willard Shopping Center Associates, supra, 326.   This motion is not an appropriate time to determine that question.   The plaintiff is entitled to summary judgment on the right to partition since the defenses are insufficient to prevent it, and under the clear and relevant facts in this case the plaintiff is entitled to judgment as a matter of law.   However, the parties have the right to present evidence to the court and argue in favor of either a partition in kind or a petition by sale.”  Id.In Jones v. Jones, Superior Court, judicial district of Stamford, Docket No. CV 03 0194133 (August 16, 2004, Jennings, J.), the court granted summary judgment for partition, but did not decide which method of partition was appropriate, reserving this decision for a later date after a hearing.   Likewise, in Ingersol v. Hickey, Superior Court, judicial district of New London, Docket No. 4002950 (September 21, 2005, Devine J.), a plaintiff with a 23/26 interest in a parcel sought partition and moved for summary judgment, which the court granted because owners have an absolute right to partition.   The court reserved for a later date, however, its ruling on whether to partition in kind or by sale, electing to hold a separate hearing on that matter.   Finally, in Duhaime v. Duhaime, Superior Court, judicial district of Hartford, Docket No. 07 5009562 (May 9, 2008, Satter, J.T.R.), the court ordered partition by private sale after previously having granted summary judgment as to partition only.

Tyma, Theodore R., J.