Opinion
DUPONT, J.
This is an appeal from a judgment of partition of real estate, in which the primary issue is whether the trial court could properly order the relief of a payment of money to the named defendant1 by the plaintiff and order the defendant to execute and deliver to the plaintiff a quitclaim deed to the subject premises. The defendant claims that the trial court had no statutory authority2 to render such a judgment because the court was limited to rendering a judgment ordering either partition in kind or a sale of the real estate. We hold that the trial court could properly render a judgment in this partition case that required the defendant to execute a quitclaim deed conveying the property to the plaintiff and the plaintiff to pay money damages to the defendant.
The plaintiff alleged in her complaint that she and the defendant hold title to certain real estate as joint tenants and that G.E. Capital Mortgage Services, Inc., has a thirty year mortgage on the real estate in the original amount of $36,000. The plaintiff sought a partition of the real estate or “[i]f a sale would better promote the interests of the coowners, then a sale of the premises and a division of the proceeds, after the payment of the expenses of the sale, between the parties [446]*446according to their respective rights in the real estate.” In his answer, the defendant admitted that there was a mortgage3 and agreed to the plaintiffs claims for relief, stating that “the defendant agrees to a partition or sale of said property.” The complaint does not allege nor does the record indicate whether the defendant signed a promissory note in connection with his execution of the mortgage deed.
The defendant counterclaimed, alleging that the plaintiff was living rent free in one of the property’s three apartments, and that the plaintiff kept the net rental income of the remaining two apartments. He sought a money judgment in the amount of one half of the net rental income and one half of what should have been the rental of the apartment in which the plaintiff lived.
Certain facts are undisputed by the parties or were found by the trial court. The real estate was purchased by the parties as an investment in July, 1994, for $45,900. The parties intended to live together in one of the three apartments of the house located on the premises. The trial court found that the amount of the down payment plus closing costs equalled $14,892, and that the defendant’s net contribution to the closing costs and down payment was $1000.4 The court further found that the rental value of the apartment in which the plaintiff was living was $500, that the plaintiff kept detailed records of rents and expenses from the date of purchase to the date of the trial that showed a net profit for that period of $1556, that the defendant contributed little or nothing by way of repairs or management or upkeep of the [447]*447building over the years, that the plaintiff did extensive clean up and repairs and has managed the property since the purchase, and that, of the net profit of $1556, the plaintiff had paid the defendant $479. Because the trial court found that the defendant could have lived in the apartment where the plaintiff resided for a three year period, the court concluded he was not entitled to be paid anything for the rental value of that apartment. The court stated that it did not find the defendant’s testimony credible and that it believed the testimony of the plaintiff.
The trial court, after making its findings, determined that the defendant should recover $1077 as his net share of the rental proceeds, be reimbursed the $1000 he paid toward the closing costs and receive 10 percent of the equity in the property. The trial court found 10 percent of the equity to be more than a fair share for the defendant because the $1000 paid toward the closing expenses was less than 10 percent of the total down payment and the closing expenses.5 In determining the amount of equity, the court found the value of the property to be $61,000 and the mortgage balance to be $25,282.40.6 The trial court concluded, on the basis of the facts found, that the defendant’s interest in the real estate was minimal and that, therefore, the defendant was not entitled to the remedy of a sale of the property. The trial court did not discuss partition in kind as a remedy. The court’s judgment was that the plaintiff pay the defendant $4605 and that the defendant execute and deliver to the plaintiff a quitclaim deed relinquishing all his right, title and interest in the property.
The defendant claims that the trial court (1) exceeded its authority in ordering a partition by payment of [448]*448money, (2) improperly found certain material facts and (3) abused its discretion in accepting the opinion testimony of the plaintiffs real estate appraiser.
This is the only appellate case in Connecticut of which we or the parties are aware in which the relief obtained in a partition action was solely the payment of money in exchange for a conveyance of title. In only one case was an issue raised similar to the issue here. In Geib v. McKinney, 224 Conn. 219, 229-30, 617 A.2d 1377 (1992), the defendants argued that because the plaintiff had only a minimal interest in the subject real estate, a partition by sale would be an improper remedy in a partition action. That argument was not addressed, however, because the Supreme Court upheld the trial court’s reasonable finding that the plaintiff had more than a minimal interest. Because the plaintiff had more than a minimal interest, the court upheld the trial court’s order of a partition by sale.
We look to §§ 52-495 and 52-500 and cases decided pursuant to those statutes for guidance. There are conflicting cases that provide clues as to whether a trial court has such power in an action for partition. Some cases contain language indicating that a court is limited in partition actions to rendering a judgment of either partition in kind or partition by sale of the real estate. See Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326, 544 A.2d 1207 (1988); Johnson v. Olmsted, 49 Conn. 509, 517 (1882). Johnson is a frequently quoted case in which the court stated that there are only two modes of relief in statutory actions for partition and that there is an undeniable right to obtain relief by use of the less injurious of the two modes. The case also states that the right of partition existed at common law and that the statutes providing for the cause of action recognize that right, leaving to be resolved by a court only the question of how partition can best be effectuated.
[449]*449Another case recognizes that remedies other than sale or partition in kind were available in equity in partition actions. Penfield v. Jarvis, 175 Conn. 463, 467 n.4, 399 A.2d 1280 (1978). An action for partition ends with, and was intended to end with, a severance of undivided possession or a severance of title.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
DUPONT, J.
This is an appeal from a judgment of partition of real estate, in which the primary issue is whether the trial court could properly order the relief of a payment of money to the named defendant1 by the plaintiff and order the defendant to execute and deliver to the plaintiff a quitclaim deed to the subject premises. The defendant claims that the trial court had no statutory authority2 to render such a judgment because the court was limited to rendering a judgment ordering either partition in kind or a sale of the real estate. We hold that the trial court could properly render a judgment in this partition case that required the defendant to execute a quitclaim deed conveying the property to the plaintiff and the plaintiff to pay money damages to the defendant.
The plaintiff alleged in her complaint that she and the defendant hold title to certain real estate as joint tenants and that G.E. Capital Mortgage Services, Inc., has a thirty year mortgage on the real estate in the original amount of $36,000. The plaintiff sought a partition of the real estate or “[i]f a sale would better promote the interests of the coowners, then a sale of the premises and a division of the proceeds, after the payment of the expenses of the sale, between the parties [446]*446according to their respective rights in the real estate.” In his answer, the defendant admitted that there was a mortgage3 and agreed to the plaintiffs claims for relief, stating that “the defendant agrees to a partition or sale of said property.” The complaint does not allege nor does the record indicate whether the defendant signed a promissory note in connection with his execution of the mortgage deed.
The defendant counterclaimed, alleging that the plaintiff was living rent free in one of the property’s three apartments, and that the plaintiff kept the net rental income of the remaining two apartments. He sought a money judgment in the amount of one half of the net rental income and one half of what should have been the rental of the apartment in which the plaintiff lived.
Certain facts are undisputed by the parties or were found by the trial court. The real estate was purchased by the parties as an investment in July, 1994, for $45,900. The parties intended to live together in one of the three apartments of the house located on the premises. The trial court found that the amount of the down payment plus closing costs equalled $14,892, and that the defendant’s net contribution to the closing costs and down payment was $1000.4 The court further found that the rental value of the apartment in which the plaintiff was living was $500, that the plaintiff kept detailed records of rents and expenses from the date of purchase to the date of the trial that showed a net profit for that period of $1556, that the defendant contributed little or nothing by way of repairs or management or upkeep of the [447]*447building over the years, that the plaintiff did extensive clean up and repairs and has managed the property since the purchase, and that, of the net profit of $1556, the plaintiff had paid the defendant $479. Because the trial court found that the defendant could have lived in the apartment where the plaintiff resided for a three year period, the court concluded he was not entitled to be paid anything for the rental value of that apartment. The court stated that it did not find the defendant’s testimony credible and that it believed the testimony of the plaintiff.
The trial court, after making its findings, determined that the defendant should recover $1077 as his net share of the rental proceeds, be reimbursed the $1000 he paid toward the closing costs and receive 10 percent of the equity in the property. The trial court found 10 percent of the equity to be more than a fair share for the defendant because the $1000 paid toward the closing expenses was less than 10 percent of the total down payment and the closing expenses.5 In determining the amount of equity, the court found the value of the property to be $61,000 and the mortgage balance to be $25,282.40.6 The trial court concluded, on the basis of the facts found, that the defendant’s interest in the real estate was minimal and that, therefore, the defendant was not entitled to the remedy of a sale of the property. The trial court did not discuss partition in kind as a remedy. The court’s judgment was that the plaintiff pay the defendant $4605 and that the defendant execute and deliver to the plaintiff a quitclaim deed relinquishing all his right, title and interest in the property.
The defendant claims that the trial court (1) exceeded its authority in ordering a partition by payment of [448]*448money, (2) improperly found certain material facts and (3) abused its discretion in accepting the opinion testimony of the plaintiffs real estate appraiser.
This is the only appellate case in Connecticut of which we or the parties are aware in which the relief obtained in a partition action was solely the payment of money in exchange for a conveyance of title. In only one case was an issue raised similar to the issue here. In Geib v. McKinney, 224 Conn. 219, 229-30, 617 A.2d 1377 (1992), the defendants argued that because the plaintiff had only a minimal interest in the subject real estate, a partition by sale would be an improper remedy in a partition action. That argument was not addressed, however, because the Supreme Court upheld the trial court’s reasonable finding that the plaintiff had more than a minimal interest. Because the plaintiff had more than a minimal interest, the court upheld the trial court’s order of a partition by sale.
We look to §§ 52-495 and 52-500 and cases decided pursuant to those statutes for guidance. There are conflicting cases that provide clues as to whether a trial court has such power in an action for partition. Some cases contain language indicating that a court is limited in partition actions to rendering a judgment of either partition in kind or partition by sale of the real estate. See Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 326, 544 A.2d 1207 (1988); Johnson v. Olmsted, 49 Conn. 509, 517 (1882). Johnson is a frequently quoted case in which the court stated that there are only two modes of relief in statutory actions for partition and that there is an undeniable right to obtain relief by use of the less injurious of the two modes. The case also states that the right of partition existed at common law and that the statutes providing for the cause of action recognize that right, leaving to be resolved by a court only the question of how partition can best be effectuated.
[449]*449Another case recognizes that remedies other than sale or partition in kind were available in equity in partition actions. Penfield v. Jarvis, 175 Conn. 463, 467 n.4, 399 A.2d 1280 (1978). An action for partition ends with, and was intended to end with, a severance of undivided possession or a severance of title. The equitable procedure for partition of property included the ability to compel the execution of a conveyance, to decree pecuniary compensation for owelty or equality of partition, to compel an accounting and to compel discovery necessary to prove title. Id.
All of the cases previously cited involve situations in which all of the owners had more than minimal interests. The defendant argues that even if the relief afforded by the trial court in the present case is permissible where an owner has a minimal interest, his interest was more than minimal. Basically, the defendant contends that the trial court improperly found his interest to be minimal because it did not take the mortgage deed that he executed into account in valuing his interest. The trial court did not discuss the mortgage, other than to acknowledge it in establishing the equity of the parties in the real estate. The defendant did not introduce a promissory note into evidence and the record does not reveal whether he in fact signed one. The closing statement describes the defendant as a “borrower” and the mortgagee as a “lender.” The remedy of a mortgagee for nonpayment is either at law on a promissory note if the mortgagor has signed a note, or in equity for foreclosure of the mortgage. New Milford Savings Bank v. Jajer, 244 Conn. 251, 260, 708 A.2d 1378 (1998). Both remedies, although separate and distinct causes of action, may be pursued in a foreclosure suit. Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981). Whether the defendant might ever be required to make payment to the mortgagee if the plaintiff should default in payment was not an issue [450]*450before the trial court.7 Also, there was no evidence that the defendant had signed a promissory note.
An action for partition at common law was equitable in nature, requiring courts to examine all relevant circumstances. Those equitable considerations are whether partition should be in kind or by sale, by adjusting unequal shares through payments to an owner or by giving an accounting. 7 R. Powell, Real Property (1977) § 607 (3). Because the remedy to be chosen by a court relates, in part, to a determination of whether one of the owners has a minimal interest, a trial court may properly consider the percentage of ownership of each. That question is different from what an appropriate distribution of the proceeds would be after a partition by sale has occurred. See Geib v. McKinney, supra, 224 Conn. 229-30.
It is not necessarily true that each tenant in common or joint tenant is entitled to an equal share in the real estate. Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). In Levay, the defendant bid on the property, in which she had an undivided one-half interest, at a sale ordered in response to the plaintiffs action for partition. “The fund received from the sale will be the equivalent of the property .... Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered.” (Citations omitted.) Id., 95-96.
Here, the trial court found that the evidence introduced by the plaintiff proved that the defendant’s interest was minimal8 and concluded that a sale would not [451]*451be equitable. The defendant claims that the court could not end its inquiry with the conclusion that a sale was not an appropriate remedy, but had to determine also whether a partition in kind was warranted.9
A partition in kind presents the same inequities as a sale when a coowner has only a minimal interest. A partition in kind presents other problems in this case as well. The judgment of partition by a court must take into account the particular situation of the parties, which includes the physical attributes of the real estate and the interests of the owners. Rice v. Dowling, 23 Conn. App. 460, 466-67, 581 A.2d 1061, cert. denied, 217 Conn. 805, 584 A.2d 1190 (1990). To determine the appropriate relief, the consequences of the relief and whether the relief is equitable must be considered. Id. In this case, the plaintiff had obtained an ex parte restraining order against the defendant, preventing him from entering the real estate, which order the defendant successfully vacated shortly thereafter. It is unlikely that the parties could cooperate peacefully in managing the property, even if a partition in kind, giving him a 10 percent interest could be accomplished. See Wilcox v. Willard Shopping Center Associates, supra, 208 Conn. 323-24. Because of the minimal interest of the defendant, coupled with the other factors here, partition in kind was not appropriate.
This is not a case in which partition in kind produces minor inequities that can be cured by an award of money damages. 7 R. Powell, supra, § 607 (4); see also Filipetti v. Filipetti, 2 Conn. App. 456, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). Here, the inequities are not minor. We conclude that the trial court need not have addressed whether partition in [452]*452kind was warranted because, by implication, once the interest of the defendant was found to be minimal, that remedy would be inequitable.
The question remaining is whether the remedy ordered by the trial court was proper, given its conclusion that the defendant’s interest was minimal. “The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he becomes 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 . . . .’’(Internal quotation marks omitted.) Geib v. McKinney, supra, 224 Conn. 224.
In a situation where neither partition in kind or a sale is equitable because a coowner has only a minimal interest in the real estate, the trial court should be permitted to fashion an alternative equitable remedy because no owner can be compelled to continue ownership with another. “The determination of what equity requires in a particular case ... is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).
We recognize that if a sale is ordered in a partition action where one owner has a substantially greater interest than another, either could become the sole owner by making the highest bid at the sale. To mandate that a trial court, however, after concluding that a partition in kind is not warranted, must always order a partition by sale even if it concludes that partition by sale is also not equitable, would provide the court with a [453]*453Hobson’s choice.10 Here, the trial court found that one owner had only a minimal interest in the property and that the other had a substantial interest and resided on the property. The court then concluded that a partition by sale was inequitable.
The right to partition was established by the common law, and is fortified by the use of equitable principles and by the statutes. The statutes governing partition are remedial in nature and should be liberally construed. Borzencki v. Estate of Stakum, 195 Conn. 368, 373, 489 A.2d 341 (1985). In essence, a complaint for partition seeks “no fault” relief. Once the cotenants or joint tenants determine they cannot coexist, the relief of severance of the ownership must be afforded, and the trial court must fashion an appropriate equitable remedy, if partition by sale or in kind would be inequitable. We do not disturb the black letter law that states that usually no remedy other than a partition by sale or in kind can be afforded in a partition action. We simply provide an exception for the limited situations such as the one of the present case, where one party’s interest is very minimal and the other resides on the premises.
The remaining two claims of the defendant relate to his counterclaim for one half of the rental value of the plaintiffs apartment and to his claim that his interest in the real estate was not minimal. We conclude, on the basis of the exhibits and the transcript, that the trial court’s finding that the defendant’s contribution to the purchase price and renovation of the premises was minimal should not be disturbed because the evidence supports the finding of fact.
The finding of the trial court that the defendant could have lived in an apartment on the premises led to its [454]*454conclusion that the defendant was not entitled to one half of the rental value of that apartment and it is that finding and conclusion that the defendant vigorously attacks as improper. We agree with the defendant. The plaintiff testified that in September, 1995, she obtained an ex parte restraining order to prevent the defendant from entering the premises. She testified that she called the police in September, 1995, because of an argument the two had about his placement of a dead bolt on the apartment door. It appears from the transcript that at the time the police were called, the restraining order had been vacated. Given the plaintiffs testimony, even if the defendant’s testimony that the police officer told him to “get out and never come back” is not credited, we cannot conclude that the trial court’s finding that the defendant could have lived in the apartment was based on the evidence. Accordingly, we must remand the case so that the trial court can establish the amount of money the plaintiff must pay the defendant for one half of the rental value of the apartment in which the plaintiff lived.
The fair rental value of the premises was found by the trial court to be $500 per month. The defendant claims that there was no basis for the finding. The trial court relied on the testimony of a real estate appraiser witness called by the plaintiff and we will not disturb the court’s finding. The defendant did not object to the testimony of the plaintiffs expert witness, and we conclude that the trial court did not abuse its discretion in accepting the witness’ opinion.
The judgment is reversed only as to the amount to be paid to the defendant by the plaintiff and the case is remanded for further proceedings to determine the amount, in addition to the $4605 award, due the defendant from the plaintiff for one half of the fair rental value of the apartment in which the plaintiff resided [455]*455from the time she began residency to the date judgment is rendered.
In this opinion HENNESSY, J., concurred.