Opinion
No. 324-78
Opinion Filed June 5, 1979
1. Limitation of Actions — Waiver — Waiver by Stipulation
Where parties stipulated to partition, one could not later, on appeal, raise claim that although statute of limitations was an affirmative defense required to be pleaded, and was not pleaded in the case, the matter was raised on argument and not objected to, thereby putting the statute in issue, for the stipulation was a clear waiver of any claim under the statute. 12 V.S.A. § 5161; V.R.C.P. 8.
2. Limitation of Actions — Partition of Land
Claim for partition exists whenever there is a tenancy in common and is a continuing right, and statute of limitations, as to the claim, runs only against a tenant who has been excluded from possession and begins to run as of the time of exclusion. 12 V.S.A. § 5161.
Appeal by plaintiff following dismissal of statutory action for partition. Franklin Superior Court, Morrissey, J., presiding. Reversed and remanded.
Richard A. Gadbois, Enosburg, for Plaintiff. John C. Gravel of Gravel, Shea Wright, Burlington, for Defendants.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
In a statutory action for partition, the parties filed a stipulation that they were tenants in common of the real estate in question, and that commissioners might be appointed to make partition. Subsequent to making such appointment, the trial court dismissed the action as barred by the statute of limitations.
The statute of limitations is an affirmative defense, required to be pleaded. V.R.C.P. 8(c). Admitting there was no such pleading in this case, or any motion to amend the pleadings, appellees claim that the matter was raised on argument and discussed without objection, thereby being put in issue under V.R.C.P. 15(b).
Whatever the force of this argument, it cannot prevail in the face of two other factors. The first is the stipulation that the parties were entitled to partition, a clear waiver of any claim under the statute of limitations. The second is the nature of a claim for partition. It exists wherever there are tenancies in common, and is a continuing right. Coolidge v. Coolidge, 130 Vt. 132, 134, 287 A.2d 566, 568 (1971); 12 V.S.A. § 5161. If tenants in common are satisfied with that status, there is no compulsion to change it by resort to legal remedy. Each has the same right, and the limitation runs only against a tenant in common who has been excluded from possession, as of the time of such exclusion. See Hegarty v. Curtis, 121 Ind. App. 74, 88, 95 N.E.2d 706, 712 (1950).
Reversed and remanded.