Norwich bulletin., 1922-07-12

 the sale of the property at the corner of I Main and Ferry street. the supreme court l in a decision written by Judge Lucien !, Burpee. has ~.snied appeals taken by Mir. 1 Morton and Mrs. Morton.
 The plaintiffs own an undivided i've sixths of the property and Mrs. Morton owns one-sixth.
 About two years ago Mrs. Morton gave to Theresa K Steiner of this city an op- tion for a term of years upon ene-sixth interest in the property and later 1t was transferred to the husband of Mrs. Nor ton by Miss Steiner. Later the plaintiffs brought suit and MT Morton was made a defendant by. Judge Wolfe. In another suit to have the property partitioned Judge Hinnnzn decided in favor of the plaintiffs and decreed that Albert ". Lil- libridge be made a committee to sell the property by auction on Jan. 2l, 1922, and make return to the court. Another date for the auction sale will now have to be set by the court J. J. Desmond was attorney for the plaintiffs, Shields and Shields for the defendants.
 The defendant James Morton appealed, assigning the overruling of his demurrer as an error. The defendant, Clara B. Morton. appealed. assigning certain rul ings on evidence as error,
 Judrs Burpss9 Decision.
 Judge Lucien Burpes glves the opinion in the case as follows, all the other judges concurring:
 It is true that the appellant. James Morton. as he asserts in his demurrer to the amended complaint. has no inter ! est in the real estatA described therein which could be partitioned. His record i ed encumbrance was by it's terms fast l ened only upon the moiety of the real l estate owned by the defendant. Clara | L. B. Morton and his interest in the property is confined within her moiety
 and is identical with her individual in | terest.
 She continued as co-tenant to be the l owner of her interest, and the other CO ! tenants rights to partition of the real estate were not disturbed by James Nor.
 tons e1cumbrance He was not nee.
 essary7 party to an action for partition merely although 1t was better for al parties that he should be made code, fendants because in him and the othel defendant together lies the whole title
 to an undivided part of the property
 which is the subject of the action.
 But evidently the principal purpose o
 this action Is not partition of the req
 estate, but its sale and the distribution
 of the money arising therefrom, by sub sequent order Of the court, among al pefsons interested in the estate in pro
 portion to their interests. In proceed
 ings towards such objects, James Nor ton may have an interest which will b,
 considerably affected. By recording hi
 assignment of the option in the land rec
 ords of the town. he has caused it t.
 appear that he is one of the persons in ] terested in the proceeds of the sale
 which will take the place to his lien, an,
 which itswill9 be the duty of the court b.
 Its supplemental judgment. to distribut as the law requires. Since he formal ly pretends that he is concerned in tn subject-matter of the action, he is a nee essary party to. enable the court to ad , , just tht rights and duties of ali person interested, and make a final determina ton of the matter in controversy. His demurrer is not broad enough t
 include all his interests which are in
 volved in the cause of action set out i
 the complaint and which will be affecte
 by the judgment which orders a sale Q real estate :n which both. defendant claim interests. Therefore the demur
 Ter was properly overuled; and upo
 the failure of the defendant James MoT ton to pleads over. the judgments wer legally rendered against both him an l tne other ueIenuanl.
 It may be added that 1t Is difficult t see how James Morton can be aggrieve by these Judgments He has, as he as ! serts. no interest that could be affecte by partition of this real estate an
 he does not claim and it does not al ! pear that any interest he has therein ca be affected by. the sale of the real es tate in any sway which will cause hir 3 any legalssinjury. All his rights whie
 the law recognizes will be transferre from the land to the money. arising fror !, the sale Neither he nor the defendar 5 co-tenant under whom he claims can e1 . . pect anything more. It is not a legs objection to a sale that it will chang } the nature or diminish the value of th ,. interest of any party If this defendar = be legally aggrieved in these proceed ings, it will be only in the supplemer tai order distributing the proceeds of tn
 sale. Because .he thinks himself al
 grieved by the decision of the court" Q t certain questions of law he has th e right to appeal. But upon his appe; t there is no reason to set aside as judi ] Tnent unless. error shall be found whic $ has in fact seriously affected the appe . lant. ysas
 g The defendant Clara L. B. Mortc e assigns as reasons for her appeal eel g tain rulings. on evidence. One of tf D plaintiffs, who was the only witness du, . ing the trial. testifed that the plaintiff : were owners of an undivided fve-sixtf
 of the real estate described in the con u plaint. and produced their deeds, wIiic : were laid in evidence. On cross-exam n nation he testified that since they. hs : acquired their title by these deeds. the h had not conveyed the property to ar . one. but that two years before they hs q given an option to sell their interest. c redirect examination he stated that tn : option had been released in writing ar if given up during the trial and that . other person then had any option. clai n or interest in this property. Couns . for the plaintiffs also stated to the co1 that all rights and claims under the o
 tion had been released in writing. and
 was authorized to make that stateme d by the persons who had held the optiol a and he offered to show the release
 the court, but did not think 1t nece
 sary to put 1t in evidence. Thereaftt ,t under further. cross-exanination, q same witness was asked if he was "sur ], that ''the paper" he called an opti, |, was an option to which objection "
 sustained and exception noted. He " then asked if he would produce the ori . inal paper called an option and tf n question was objected to and exclude S and an exception noted. The witne