In Billings v. Billings, 114 Vt. 512, 49 A.2d 179 (1946), the Court was called upon to mediate the interplay of these two statutes when parties owning equal interests in a piece of property both were willing to take an assignment and pay the other for the half share of the property.
The two dissenting justices in that case noted that, in addition to providing remedies beyond those available in the common law, the language of § 5174 was permissive with respect to the assignment remedy (when property cannot be conveniently divided, "the court may order it assigned to one of the parties") . Billings, 114 Vt. at 519-20, 49 A.2d at 183-84 (Moulton, C.J., dissenting with whom Jeffords, J., joins).
From this they discerned an intent to give the trial court discretion when making an assignment, allowing it to do so even when competing parties sought such a remedy. Id. at 519-28, 49 A.2d at 184 (permissive language "carries the implication of a power to make a choice, and in the exercise of a sound discretion to order an assignment to one or the other of the parties").
The Court split three-to-two over the interpretation of the statutory scheme governing partition.
The language at issue was identical to that of the statutes in effect today. Compare id. at 514, 49 A.2d at 181, with 12 V.S.A. 5174-5175.
The majority in Billings concluded that, when two parties own equal shares in a piece of property and both wish to take assignment of the other's share, the statutory scheme requires public sale of the property. Billings, 114 Vt. at 517, 49 A.2d at 182.