Geib v. McKinney

617 A.2d 1377, 224 Conn. 219, 1992 Conn. LEXIS 409
CourtSupreme Court of Connecticut
DecidedDecember 22, 1992
Docket14519
StatusPublished
Cited by18 cases

This text of 617 A.2d 1377 (Geib v. McKinney) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geib v. McKinney, 617 A.2d 1377, 224 Conn. 219, 1992 Conn. LEXIS 409 (Colo. 1992).

Opinion

Callahan, J.

The named defendants, Walker McKinney and John D. McKinney, Jr., appeal from the judgment of the trial court, on the report and recommendation of an attorney state trial referee, ordering the partition by sale of two parcels of real estate situated in Weston, owned jointly by the defendants and their nephew, the plaintiff, Howell R. Geib III.1

[221]*221The plaintiff commenced two actions pursuant to General Statutes §§ 52-495 and 52-500 (a) to partition both the “Birch Hill” property and the “Richardson” property that were held by the parties to this action as joint tenants with an express right of survivorship.2 The actions were consolidated and were referred to Arthur A. Hiller, attorney state trial referee, for trial. The trial was bifurcated to try the issue of partition separately from the issue of how the proceeds of a partition by sale, if ordered, should be distributed.

After a hearing to determine the propriety of partition, the trial referee recommended a judgment of partition by sale of both properties and the appointment of an appraiser to assess their values. The defendants moved to correct the trial referee’s memorandum of decision claiming that: (1) partition was improper because it would impermissibly destroy the express right of survivorship in the properties; and (2) appointment of an appraiser would cause unnecessary expense. The trial referee denied the defendants’ motion to correct, and the defendants filed an objection to the acceptance of the trial referee’s report pursuant to Practice Book § 444. The trial court, Katz, J., rendered a judgment of partition by sale for each of the properties and appointed an appraiser. The defendants appealed to the [222]*222Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial referee could reasonably have found the following facts. In 1983, the parties purchased the Birch Hill property in Weston for use as a vacation home for weekend and summer use. Walker McKinney paid the purchase price of $154,000, closing costs of $2835 and $48,106 in initial improvements.3 The parties, however, agreed that the property would be owned equally by all three and that over a period of time each would contribute to the costs equally. A mortgage from the Nor-walk Savings Society was taken out on the property in the amount of $108,300, and the mortgagors, the plaintiff and John D. McKinney, paid over the entire amount borrowed to Walker McKinney. In addition, the plaintiff and John D. McKinney each paid Walker McKinney $31,147.4 According to the deed, all three parties owned the property as joint tenants with the right of survivorship.

In February, 1985, the parties decided to purchase seven acres of unimproved land, referred to as the Richardson property, for investment purposes. At that time, the parties also owned four undeveloped lots on Long Island—the plaintiff owned one lot; John D. McKinney owned one lot; and Walker McKinney owned two lots. Each lot was worth $22,500. In order to purchase the Richardson property, the plaintiff and the McKinneys agreed with the seller of the Richardson property to exchange their lots for the Richardson property and to give the seller a $75,000 purchase money [223]*223mortgage. Because Walker McKinney had paid the closing costs and contributed an additional lot to the purchase of the Richardson property, the plaintiff and John D. McKinney each paid one half of the monthly mortgage payments until November 1,1990, when the plaintiffs payments ceased. All three parties took title to the Richardson property as joint tenants with rights of survivorship and the deed to the property so indicated.

Toward the end of 1985, after the purchase of these properties, the plaintiff and Walker McKinney had what they called a “parting of the ways.” Thereafter, the plaintiff never used the Birch Hill property, and was told that he was no longer welcome there. Walker McKinney had control over trust funds for the plaintiff and, after their estrangement, made mortgage payments from these funds on the plaintiff’s behalf on both the Birch Hill property and the Richardson property until November 1,1990, when Walker McKinney, without notifying the plaintiff, began to pay the plaintiff’s share of the mortgage payments on both properties himself.

The defendants claim that the trial court improperly ordered: (1) the partition of properties, because they were held in joint tenancy with an express right of survivorship; (2) the partition of properties by sale, because the party who sought partition had only a minimal interest in the properties; and (3) an appraisal of the properties.

I

The defendants first claim that the trial court improperly ordered the partition of the two properties because partition impermissibly destroyed their rights of survivorship. Specifically, they argue that partition improperly defeated the parties’ intention as evidenced by the [224]*224right of survivorship expressed in the deeds to the properties. We do not agree.

General Statutes § 52-495 vests authority in courts having jurisdiction of actions for equitable relief to order “partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail.” (Emphasis added.) 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 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. . . . ” Johnson v. Olmsted, 49 Conn. 509, 517 (1882); see also Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 325, 544 A.2d 1207 (1988); Delfino v. Vealencis, 181 Conn. 533, 536-37, 436 A.2d 27 (1980).5

The defendants contend, however, that because the parties to these actions specifically intended to create a right of survivorship and provided for this right by an express provision in the deeds to both the Birch Hill property and the Richardson property, the plaintiff has no right to partition these properties without their consent. According to the defendants, although partition [225]*225may normally be appropriate for joint tenancies, partition with respect to a joint tenancy with an express right of survivorship is impermissible because the right of survivorship creates a contingent remainder interest in the survivors that cannot be defeated by one of the joint tenants.

Although there is authority for the proposition that certain survivorship interests in real property are, under some circumstances, indestructible in the absence of the voluntary act of all the joint tenants; Hughes v. Fairfield Lumber & Supply Co., 143 Conn.

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

Related

D. J. v. F. D.
229 Conn. App. 137 (Connecticut Appellate Court, 2024)
Cavanagh v. Richichi
212 Conn. App. 402 (Connecticut Appellate Court, 2022)
Solway v. Ray
Connecticut Appellate Court, 2015
LaBow v. LaBow
973 A.2d 127 (Connecticut Appellate Court, 2009)
Giulietti v. Giulietti
65 Conn. App. 813 (Connecticut Appellate Court, 2001)
Fernandes v. Rodriguez
761 A.2d 1283 (Supreme Court of Connecticut, 2000)
Richards v. Richards, No. Cv99 00676785 (Oct. 12, 2000)
2000 Conn. Super. Ct. 12466 (Connecticut Superior Court, 2000)
Fernandes v. Rodriguez
735 A.2d 871 (Connecticut Appellate Court, 1999)
Short v. Jenkins, No. Cv97 0257092 (Nov. 2, 1998)
1998 Conn. Super. Ct. 12437 (Connecticut Superior Court, 1998)
Apicella v. Tcd, No. Cv98 06 25 46 (Aug. 28, 1998)
1998 Conn. Super. Ct. 1949 (Connecticut Superior Court, 1998)
Gallant v. Cavallaro
717 A.2d 283 (Connecticut Appellate Court, 1998)
Mitchell v. Silverstein, No. Cv 97 63909 S (May 8, 1998)
1998 Conn. Super. Ct. 5600 (Connecticut Superior Court, 1998)
Schmaling v. Schmaling
707 A.2d 339 (Connecticut Appellate Court, 1998)
Pizzo v. Slamon, No. Cv 96563622 (Jan. 6, 1997)
1997 Conn. Super. Ct. 195 (Connecticut Superior Court, 1997)
Schmaling v. Schmaling, No. Cv 92 0124651 (Feb. 28, 1995)
1995 Conn. Super. Ct. 1771-OO (Connecticut Superior Court, 1995)
Coan v. Bernier (In Re Bernier)
176 B.R. 976 (D. Connecticut, 1995)
Neri v. Neri
647 A.2d 1 (Connecticut Appellate Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
617 A.2d 1377, 224 Conn. 219, 1992 Conn. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geib-v-mckinney-conn-1992.