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R.R. Thompson Estate Co. v. Kamm, 107 Or. 61, 213 P. 417, 28 A.L.R. 722

Facts

The property in question is a block in Portland, with a strip owned solely by the plaintiff and the remaining area owned in common by both parties. The plaintiff holds a three-fourths interest while the defendant holds a one-fourth interest. The plaintiff sought partition or, alternatively, a sale of the property if partition was not feasible. The circuit court appointed referees to assess the property, leading to a decree for sale, which the defendant appealed.

In the city of Portland there is a block bounded on the south by Pine street, on the west by Front street, on the north by Ash street, and on the east by the Ash Street Dock, on the Willamette river. Facing Front street is a strip of ground in that block 40 feet, 9 inches in width, owned in severalty by the plaintiff. The ground remaining in the block, both north and south of this strip, is owned in common by the plaintiff and the defendant; the former holding an undivided three–fourths, and the latter an undivided one–fourth, thereof.

Issue

The main issue is whether the property should be sold or divided in kind, with the interests of the parties conserved through the payment of owelty.

The point in dispute is whether the property shall be sold, or whether it shall be divided in kind and the interests of the parties conserved by the payment of owelty.

Rule

Under Oregon law, tenants in common may seek partition of property, and if partition cannot be made without great prejudice, the court may order a sale. The court must consider the interests of the parties and the feasibility of partition.

When several persons hold real property as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, or when several persons hold as tenants in common a vested remainder or reversion in any real property, any one or more of them may maintain a suit for the partition of such real property, according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appears that a partition cannot be had without great prejudice to the owner.

Analysis

The appellate court analyzed the reports from the referees and the evidence presented, concluding that a sale of the property would be disadvantageous given the current market conditions. The court emphasized the importance of attempting to divide the property in a manner that preserves the interests of both parties, ultimately deciding to allow the defendant to retain certain storerooms while requiring her to pay owelty to the plaintiff.

After consideration of all the matters involved, considering the odiousness of sale as compared with division in kind, we think the middle course is safest, leading to an approval of the suggestion of the majority of the referees, allowing to the defendant the north two storerooms on the Ash street tract and requiring her to pay to the plaintiff $2,617 as owelty.

Conclusion

The appellate court reversed the circuit court's decree for sale and ordered a division of the property, requiring the defendant to pay $2,617 as owelty to the plaintiff.

The decree of the circuit court is accordingly reversed, and one here entered in accordance with the views herein expressed.

Who won?

The prevailing party is the R. R. Thompson Estate Company, as the appellate court ruled in favor of partitioning the property rather than selling it, which aligned with their interests.

The plaintiff contends that the defendant is concluded on the question involved here of sale or division by the fact that the trial judge visited the premises at the request of both parties and thereafter made a decree of sale.

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