Billings v. Billings , 114 Vt. 512 ( 1946 )

I cannot agree with the opinion of the majority, which, as it seems to me, savors altogether too strongly of judicial legislation.

The commissioners appointed to make partition of certain real estate have reported that it cannot be divided without great inconvenience to the parties interested, that $4000. is an equitable sum to be paid for a half interest therein and that each of the two parties, who are equal owners as tenants in common, is willing to take an assignment at that price. No exception was taken to the report, and the County Court, after hearing evidence as to the relative claims of the parties, ordered an assignment to be made to the plaintiff. The defendant's claim, as presented by her exceptions is simply this; that under the circumstances the court was required to order the commissioners to sell the property pursuant to the provisions of P.L. 1978, and, incidentally, that it had no authority to take evidence upon the question as to which one of the parties should be the assignee.

The right to a partition by sale is purely statutory, being an innovation upon the common law which favors a partition in kind rather than by sale, and, if a sale is to become a matter of right, all the statutory requirements must be met by proof.Blanchard v. Cross, 97 Vt. 370, 373, 123 A 382. It is clear to me that, in this case, these requirements have not been satisfied. P.L. 1978 is as follows: "In case one of the parties interested will not take such assignment and pay such sum, the court shall order the commissioners to sell such estate at public or private sale." Although this language is not devoid of ambiguity the intention of the Legislature is plain, that in case no one of the parties will take the assignment on the terms specified a sale must be ordered. This is the only contingency in which a sale is authorized, and to hold that the court must order it when each of the parties is willing to become the assignee is to give sanction to a procedure that P.L. 1978 not only does not permit but by an application of the maxim, "inclusio unius est exclusio alterius," impliedly forbids.

I believe and would hold that the action taken by the County Court should be upheld and the judgment affirmed. P.L. 1977 provides that: "When it appears that the real estate, or a portion thereof, cannot be divided without great inconvenience to the parties interested, the court may order it assigned to one of the parties, provided he pays to the other party such sum of money, at such times and in such manner as the Commissioners judge equitable." When this cause was here before (114 Vt. 70,39 A.2d 748) we sustained the defendant's contention that by this statute the designation of the provisional assignee is for the Court and not for the Commissioners to make. At that time only one of the parties had exhibited a willingness to become the assignee, and so the present issue did not arise. But P.L. 1977 is sufficiently comprehensive to cover a situation where there is more than one potential assignee. The phrase "may order it assigned to one of the parties" is permissive. Snyder v. C.V.Ry., 112 Vt. 190, 193, 22 A.2d 181; Joy v. Swanton Svgs. Bk. andTr. Co., 111 Vt. 106, 111, 10 A.2d 216; Spaulding and Kimball Co. v. Aetna Chemical Co., 98 Vt. 169, 173, 126 A 588. It carries the implication of a power to make a choice, and in the exercise of a sound discretion to order an assignment to one or the other of the parties. When read in connection with P.L. 1978 which restricts the authority to order a sale to a situation which concededly does not exist in this case, it seems clear that the intention of the Legislature was to leave the decision in the present circumstances to the discretion of the County Court. If this were not so, there would be no available remedy under the statute, the impartible real estate would of necessity remain undivided to the detriment of the parties and the purpose of the law be defeated. Such an absurd result must be avoided if possible. In Re Watkins Estate, 114 Vt. 109, 113,41 A.2d 180, 157 A.L.R. 212; Brammall v. LaRose, 105 Vt. 345, 349, 165 A 916. The construction of the statute above stated is free from any taint of judicial legislation, even of the kind that the late Mr. Justice Oliver Wendell Holmes regarded as interstitial.

There is no issue as to an abuse of discretion, for the only contention is that a sale is obligatory under P.L. 1978. As in the case of all discretionary rulings we must assume that the discretion was exercised soundly and judicially as required by law, the contrary not appearing. Murray v. Nelson, 97 Vt. 101, 110, 122 A 519; State v. Stacy, 104 Vt. 379, 389, 160 A 257, 747.

The testimony of the defendant at the hearing before the County Court to the effect that she was willing to pay $5000. for a half interest in the property might well have been introduced before the Commissioners and considered by them in determining the equitable price to be paid. But they have adjudged and reported the sum of $4000. As we have seen, no exception was taken to their report which is, therefore, conclusive to the same extent that findings of fact made by a trial court, which are unexcepted to, are conclusive in this court. Certainly this testimony cannot justify an order of sale that is not authorized by law.

I do not overlook the Ohio and West Virginia decisions which are cited and relied upon in the opinion of the majority. These cases involve statutes which differ from our own in certain respects, and I would feel no obligation to follow them, even if it were otherwise, because to do so would, in my opinion, depart from the canons of statutory construction which have long been recognized and adopted in this State.

Mr. Justice Jeffords concurs in the foregoing dissent.