Calland v. Conway

Supreme Court of Rhode Island

Calland v. Conway

14 R.I. 9, 1882 R.I. LEXIS 3

DecidedOctober 4, 1882

StatusPublished

This text of 14 R.I. 9 (Calland v. Conway) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Calland v. Conway, 14 R.I. 9, 1882 R.I. LEXIS 3 (R.I. 1882).

Pincite

Opinion

Dttkebe, C. J.

This is a suit in equity for partition. The bill sets forth that the complainants, in the right of the female complainant, are owners in fee of one undivided moiety of the estate in suit, and that the defendant is entitled to the other moiety, as lessee for ten years from September 1,1881. The defendant demurs to the bill and contends that the court in chancery has no power to make the partition. He refers to Pub. Stat. R. I. cap. 230, §§ 2-4. By § 2 partition is compellable between joint tenants, coparceners, and tenants in common, who are seized or possessed of estates of inheritance, “ by writ of partition or bill in equity; ” and by §§ 3 and 4 partition is compellable “ by writ of partition ” between tenants for life or years, or between tenants for life or years and tenants in fee. The court, if dependent for its jurisdiction on §§ 2-4, has jurisdiction only under § 2, and cannot grant relief in this suit. We think, however, the court has jurisdiction independently of them. The words “ or by bill in equity,” contained in § 2, first appear in the General Statutes, issued in 1872. They are not to *11 be found in the corresponding section in the Revised Statutes, issued in 1857. The jurisdiction is, however, recognized in the Revised Statutes in other sections, and was doubtless understood to have been conferred in the grant of full chancery powers. There can be no doubt, we think, that full chancery powers include a power to make partition between tenants in fee and tenants for years. The authorities cited for complainant show it. 1 Story Eq. Juris. § 656; Baring v. Nash, 1 Ves. & Bea. 551, 555; Wotten v. Copeland, 7 Johns. Ch. 140; Wills v. Slade, 6 Ves. Jun. 498; Gaskell v. Gaskell, 6 Sim. 643.

Charles J3. Gorman Walter H. Barney, for complainants. Benjamin M. Bosworth, for respondent.

The demurrer, therefore, is not maintainable for tbe cause assigned. We notice, however, that the bill does not allege that the parties are “ seized or possessed.” This is necessary. The omission was doubtless inadvertent and can be supplied by amendment. Demurrer overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Dttkebe, C. J.

This is a suit in equity for partition. The bill sets forth that the complainants, in the right of the female complainant, are owners in fee of one undivided moiety of the estate in suit, and that the defendant is entitled to the other moiety, as lessee for ten years from September 1,1881. The defendant demurs to the bill and contends that the court in chancery has no power to make the partition. He refers to Pub. Stat. R. I. cap. 230, §§ 2-4. By § 2 partition is compellable between joint tenants, coparceners, and tenants in common, who are seized or possessed of estates of inheritance, “ by writ of partition or bill in equity; ” and by §§ 3 and 4 partition is compellable “ by writ of partition ” between tenants for life or years, or between tenants for life or years and tenants in fee. The court, if dependent for its jurisdiction on §§ 2-4, has jurisdiction only under § 2, and cannot grant relief in this suit. We think, however, the court has jurisdiction independently of them. The words “ or by bill in equity,” contained in § 2, first appear in the General Statutes, issued in 1872. They are not to *11 be found in the corresponding section in the Revised Statutes, issued in 1857. The jurisdiction is, however, recognized in the Revised Statutes in other sections, and was doubtless understood to have been conferred in the grant of full chancery powers. There can be no doubt, we think, that full chancery powers include a power to make partition between tenants in fee and tenants for years. The authorities cited for complainant show it. 1 Story Eq. Juris. § 656; Baring v. Nash, 1 Ves. & Bea. 551, 555; Wotten v. Copeland, 7 Johns. Ch. 140; Wills v. Slade, 6 Ves. Jun. 498; Gaskell v. Gaskell, 6 Sim. 643.

Charles J3. Gorman Walter H. Barney, for complainants. Benjamin M. Bosworth, for respondent.

The demurrer, therefore, is not maintainable for tbe cause assigned. We notice, however, that the bill does not allege that the parties are “ seized or possessed.” This is necessary. The omission was doubtless inadvertent and can be supplied by amendment. Demurrer overruled.

Cite This Page — Counsel Stack

Bluebook (online)

14 R.I. 9, 1882 R.I. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calland-v-conway-ri-1882.

Opinion

Related

Cite This Page — Counsel Stack