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1. When Equitable Partition is Authorized?

O.C.G.A. § 44-6-140 When equitable partition authorized.

Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.

Enjoining partition. – It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29, 295 S.E.2d 736 (1982).

Cited in Mayer v. Hover, 81 Ga. 308, 7 S.E. 562 (1888); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Joel v. Joel, 201 Ga. 520, 40 S.E.2d 541 (1946); Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Givens v. Dunn Labs., Inc., 138 Ga. App. 26, 225 S.E.2d 480 (1976).

Distinction Between Equity and Law

Distinction between equitable and statutory partitions has not been eliminated. Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975).

Section is an alternative to the statutory method of petition provided in § 44-6-160. Cock v. Callaway, 141 Ga. 774, 82 S.E. 286 (1914).

Tenant in common or co-owner of land is entitled to either statutory or equitable partition. Billings v. Billings, 242 Ga. 632, 250 S.E.2d 480 (1978).

Equity may adjust complicated and unascertainable interests. – When the title to land is in tenants in common, and their several interests have become complicated and cannot be definitely ascertained and set apart at law, equity will entertain jurisdiction to adjust by one decree the rights of all. Fountain v. Davis, 71 Ga. App. 1, 29 S.E.2d 798 (1944); Waycross Military Ass’n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).

Plaintiff must prove necessity for equitable relief. – While a petition will not be dismissed if it states a claim for either legal or equitable partition, the plaintiff must prove the necessity for equitable relief in order to justify the equitable decree. Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975).

A plaintiff in an action for equitable partition must show that there is a necessity for equitable relief or that circumstances make equitable relief more just and suitable. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

Unless equitable jurisdiction is applied, parties seeking partition are required to resort to legal remedy. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

Need for obstacle to legal remedy, or peculiar circumstances. – Section is inapplicable unless there is obstacle rendering legal remedy less ample and adequate. Greer v. Henderson, 37 Ga. 1 (1867); Rosenberg v. Phelps, 159 Ga. 607, 126 S.E. 788 (1925).

Where no peculiar circumstances are shown, equity will not take cognizance of a partition action. Saffold v. Anderson, 162 Ga. 408, 134 S.E. 81 (1926).

An application to partition lands between tenants in common may be instituted at law, or it may be brought in equity whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just. Unless for some special reason equitable jurisdiction is applicable, a party seeking the writ of partition is required to resort to the remedy afforded by § 44-6-160. Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).

Petition not made equitable merely by allegations of uncertainty of interests and difficulty of partitioning. – Allegations in a petition that there was some uncertainty about all parties having an interest in the land and praying for the appointment of a guardian ad litem for unnamed parties at interest, and alleging that the property could not be partitioned by metes and bounds, do not make the petition an equitable one for partition. Brinson v. Thornton, 220 Ga. 234, 138 S.E.2d 268 (1964).

Equitable partition considered separately from petition at law. – Where a tenant in common alleges grounds for an equitable partition, the petition constitutes a separate case from the petition at law and must be treated accordingly. Frierson v. Dye, 150 Ga. 206, 103 S.E. 162 (1920).

Action properly treated as one in equity for partitioning where defendant claimed title by prescription. – Where the title and interests to realty of the parties in dispute over construction of the will had become more complicated by defendant’s claim of title by prescription, the trial court did not err in treating the action as one in equity for partitioning. Bailey v. Johnson, 247 Ga. 657, 278 S.E.2d 384 (1981).

Circumstances Supporting Partition

1. General

Petition not defeated because opposing party owns life estate in other undivided interests. – One who holds title to an undivided interest in land may not, in an action to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956).

2. Specific

Tenants excluded from possession may maintain action. – Where one cotenant is in exclusive possession and denies the title of the others, the tenants so excluded may maintain an action for partition under this section. Hatton v. Johnson, 150 Ga. 218, 103 S.E. 233 (1920).

Where there is an agreement between the tenants in common to divide severable property, in pursuance of which the portion of one cotenant is allotted to him, he may, upon demand and refusal to deliver the same, maintain an action for the conversion thereof against his former cotenant, having the property in his possession, although this portion was never in fact separated from the residue. Hemphill v. Hemphill, 62 Ga. App. 358, 7 S.E.2d 762 (1940).

Section applicable where matters of account involved. – Where matters of an account against a cotenant are involved and a sale is necessary to partition, this section applies. Lowe v. Burke, 79 Ga. 164, 3 S.E. 449 (1887).

Where matter of account against an insolvent cotenant for past profits of the land is involved, and where partition of the premises cannot be made without a sale, equity has jurisdiction to decree a partition and account. The element of account and insolvency will give equity jurisdiction. Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950).

While equity jurisdiction ceases where the legislature gives a specific remedy at law, a specific legal remedy for partition is provided, and equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there be other peculiar circumstances which render the proceeding in equity more suitable and just. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).

Property which is owned jointly may be partitioned in a divorce action by the court as in an equitable proceeding. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

In divorce cases heard without a jury, as equitable proceedings, a trial judge may divide property as equity demands, regardless of which party receives an award. Reaves v. Reaves, 244 Ga. 102, 259 S.E.2d 52 (1979).

Procedure

Superior court which has general equitable powers has jurisdiction to partition property under this section. Gorman v. Gorman, 239 Ga. 312, 236 S.E.2d 652 (1977).

Court may entertain partition proceeding without first trying, or in connection therewith, accounting action concerning the same property held in cotenancy. Lankford v. Milhollin, 200 Ga. 512, 37 S.E.2d 197 (1946).

Owner of water easement as necessary party. – While all parties having an interest in the property sought to be partitioned must be named defendants, where the United States government had an easement or grant of two-thirds of the water flow to the spring located on the land to which all the interests of all the tenants in common were subject, and only the property was sought to be partitioned, it was not necessary for the United States government to be named as a party defendant, even if such might be done with or without its permission and consent. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957).

Effect of agreement on partition action. – Generally party will not be decreed partition if it would be contrary to his agreement. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).

Objections to return of appointed commissioners not timely filed. – Since equity has jurisdiction under this section in cases of partition, it is too late to file objections to the return of the appointed commissioners where the return has been entered up as the judgment of the court with the knowledge of both parties to the proceeding. Drew v. Drew, 151 Ga. 11, 105 S.E. 469 (1921).

Appeal in partition action to enforce separation agreement. – Although it had its roots in the parties’ divorce action, an action for an equitable partition to enforce the separation agreement which was part of the divorce decree is a new action and not merely a continuation of the divorce action. For this reason, § 5-6-35 does not apply to this situation, and husband’s direct appeal from the partition order is proper. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

Relief Granted

Court has power to determine all various matters in dispute. – Where a tenant in common applies to the superior court to have certain land so held partitioned, and to have an accounting between the tenants in common, such a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Court decree transfers title. – Whether the division of a estate was entered into under the provisions as to the distribution of estates in kind, or was made under the provisions as to the partition of estates by agreement of the parties, the division award of the commissioners, which was approved and made the decree of the court, was sufficient to transfer title, out of the estate and the heirs, to the persons to whom the particular portions of the estate were awarded. Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951).

Partitionship may be accomplished through receivership. – There is no reason why partitionment in equity may not be fully and effectually accomplished through and by receivership. Waycross Military Ass’n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).

Court may adjust cotenants’ accounts. – Having properly assumed jurisdiction for the partition of the property of the cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965).

Court may make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Compensation allowed for counsel in proper case. – In an equitable partition proceeding, the judge of the superior court before whom the same is pending has the power under general equitable doctrine, in a proper case and where the circumstances justify it, to allow compensation for the plaintiff’s counsel, as a charge against the fund arising from the sale of the land partitioned. Especially is this true where other equities are involved, such as the settlement of involved accounts between the parties, where deeds are canceled, and where a receiver is appointed to manage and sell properties. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees but, in an equitable proceeding for partitionment and for other relief, an allowance for attorney’s fees may be made by the court from the common fund. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974).

In an equitable proceeding for partition and other relief, the court does not err in awarding fees to the attorneys for the plaintiffs to be paid from the common fund derived from the sale of the joint property. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965).

Illustrative Cases

Equitable partition found authorized. – Where two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and where, after the station had been used by both companies jointly and individually for several years, the company that did not own the land became insolvent, and all its property, including its interest in the station, was duly sold under foreclosure proceedings and purchased by private individuals, and where the railroad of this company was dismantled and its business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225, 152 S.E. 243 (1930).

Where a divorce decree made no provision for alimony, and where the petition of the wife alleges that the defendant is disposing and threatening to dispose of property owned in common, and that he is insolvent, and the wife prays for a money judgment and an injunction, the petition is sufficient to allege reasons for an equitable partition and an accounting, rather than by a partition at law. Wallack v. Wallack, 211 Ga. 745, 88 S.E.2d 154 (1955).

Agreement to occupy home not partnership. – An agreement between the cotenants of a city lot, on which is located a residence, to occupy the same jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the co-owners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Equitable accounting found authorized. – Where the petitioner in a partitioning proceeding prays for an accounting for water sold from a spring on property to be partitioned by one of the tenants in common, and alleges that a lease agreement, whereby the petitioner’s interest in the water rights had been granted to the city, had been declared void by a court decision and that he has not received compensation for vast quantities of water used from the spring, the only accounting available to the petitioner is one in equity, there being no adequate remedy at law for an accounting for the use of the water by another tenant in common. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957). or proceeding to establish private boundary line.


2. What are the Legal Grounds for Partition of Real Property in Georgia?

O.C.G.A.§ 44-6-160 Grounds for Partition; Jurisdiction; Contents of Petition.

When two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements shall be divided, any one of such common owners may apply by petition to the superior court of the county in which such lands and tenements are located for a writ of partition which shall set forth plainly and distinctly the facts and circumstances of the case, shall describe the premises to be partitioned, and shall define the share and interest of each of the parties therein. When the lands in question constitute a single tract situated in more than one county, the application may be made to the superior court of any of such counties.

Constitutionality of section. – See Southall v. Carter, 229 Ga. 240, 190 S.E.2d 517 (1972).

The other Georgia Statutes relevant to Partition of Real Property are:

44-6-160.

When two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements shall be divided, any one of such common owners may apply by petition to the superior court of the county in which such lands and tenements are located for a writ of partition which shall set forth plainly and distinctly the facts and circumstances of the case, shall describe the premises to be partitioned, and shall define the share and interest of each of the parties therein. When the lands in question constitute a single tract situated in more than one county, the application may be made to the superior court of any of such counties.

44-6-161.

If the party desiring the writ of partition is of full age and free from disability, he may make the application either in person or by his agent or attorney in fact or at law. An application may be made for the benefit of a minor, a mentally ill or retarded person, or the beneficiary of a trust by the guardian of such minor, the guardian of such mentally ill or retarded person, or the trustee of such beneficiary, as the case may be.

44-6-162.

The party applying for the writ of partition shall give the other parties concerned at least 20 days´ notice of his intention to make the application. If any of the other parties is a minor, a mentally ill or retarded person, or a beneficiary of a trust, the 20 days´ notice shall be served on the guardian of such minor, the guardian of such mentally ill or retarded person, or the trustee of such beneficiary. If any of the parties reside outside of this state, the court may order service by publication as in its judgment is right in each case.

44-6-163.

When the application for partition is made and when due proof is made that the notice required by Code Section 44-6-162 has been given, the court shall examine the petitioner´s title and share of the premises to be partitioned and shall thereupon pass an order directing the clerk of the superior court to issue a writ of partition which shall be framed according to the nature of the case and directed to five freeholders of the county in which the lands are located who shall serve as partitioners; and the court shall execute and return the writ as provided in Code Section 44-6-164.

44-6-164.

The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days´ notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. They shall return the writ, with their actings and doings thereon and under their hands and seals, to the superior court within three months after its issuance, which return shall be filed and kept by the clerk until the next term of the court.

44-6-165.

At the term of the court when the application is made or at the next term after the partitioners have made their return, any of the persons against whose right or title a judgment is sought may file objections to the right of the applicant and the writ of partition or to the return of the partitioners, as the case may be, and may, by way of defense, show any good and probable matter in bar of the partition asked for or show that the petitioner does not have title to as much as is allowed and awarded to him by the partitioners or to any part of the land; in such event, the issue shall be tried by a jury as in cases of appeals to the superior court.

44-6-166.

If no objection to the return of the partitioners is filed by any of the parties or if, being filed, the jury on the trial finds a verdict against the party setting up such objections, the return of the partitioners shall be made the judgment of the court and shall be final and conclusive as to all the parties concerned who were notified of the application for partition and of the time of executing the writ as required by Code Sections 44-6-162 and 44-6-164, and a writ of possession shall issue accordingly. If objections to the return are filed and are sustained by the jury trying the case or if it appears to the court that there is injustice or inequality in the division made by the partitioners, the court shall award a new partition to be made in the presence of the parties concerned if they will appear, which second partition, when returned, shall be firm, good, and conclusive forever against all parties notified as provided in Code Sections 44-6-162 and 44-6-164.

44-6-166.1.

(a) As used in this Code section, the term:

(1) ‘Party in interest’ means any person, other than a petitioner, having an interest in property.

(2) ‘Petitioner’ means any person petitioning for partition of property.

(3) ‘Property’ means lands and tenements sought to be partitioned pursuant to this subpart.

(b) Whenever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for, the court shall proceed pursuant to this Code section.

(c) The court shall appoint three qualified persons to make appraisals of the property. The average of the three appraisals shall constitute the appraised price of the property for purposes of this Code section. Notice of the amount of the appraised price shall be served on the petitioners and all parties in interest within five days after the appraised price is established.

(d) Within 15 days after the appraised price is established, upon request to the court and grant thereof, any petitioner may withdraw as petitioner in the partition action and become a party in interest and any party in interest may become a petitioner in the action. Any petitioner remaining as such after the fifteenth day may be paid, pursuant to this Code section, his respective share of the appraised price corresponding to his respective share of the property. This payment shall constitute complete satisfaction of all of that petitioner´s claims to and interest in that property. If no petitioner remains in the partition action after that fifteenth day, the proceeding shall be dismissed, and the petitioners who have withdrawn shall be liable for the costs of the action, including but not limited to the appraisal costs.

(e)(1) No sooner than 16 days and no later than 90 days after the appraised price is established, the parties in interest shall tender to the court sufficient sums to pay to petitioners their shares of the appraised price, as determined by their respective shares in the property, or the property shall be subject to public sale pursuant to Code Section 44-6-167. If the property is subject to such public sale, the petitioner and the parties in interest shall be liable for appraisal costs under this Code section in proportion to their respective interests in the property.

(2) Each party in interest may pay toward the amount required to purchase any petitioners´ shares of the appraised price an amount in proportion to that party´s share of the total shares of property of all parties in interest, unless one party in interest authorizes another party in interest to pay some or all of his proportionate share of the shares available for sale. The share of each party in interest in the property shall be increased by the share that party pays toward the purchase of petitioners´ shares in the property.

(f) Within 95 days after the appraised price is established, unless the property becomes subject to public sale pursuant to paragraph (1) of subsection (e) of this Code section, the petitioners shall execute title to the parties in interest for the property in return for payment to the petitioners, from sums tendered to court under subsection (e) of this Code section, of their respective shares of the appraised price. Petitioners and parties in interest shall be liable for costs of the sale and proceedings relating thereto under this Code section in proportion to their respective shares in the property prior to that sale.

44-6-167.

In the event lands and tenements sought to be partitioned are not sold pursuant to Code Section 44-6-166.1, the court shall order a public sale of such lands and tenements. The court shall appoint three discreet persons as commissioners to conduct such sale under such regulations and upon such just and equitable terms as it may prescribe. The sale shall take place on the first Tuesday in the month, shall be at the place of public sales in the county in which the land is located, and shall be advertised in some public newspaper once a week for four weeks. This Code section shall not be construed to change the place of sale in those counties where by law sheriffs´ sales are required to take place at the courthouse.

44-6-168.

After the sale of any lands and tenements provided for in Code Section 44-6-167, the commissioners conducting the sale shall return their proceeds to the same term of the court ordering such sale if such term is still being held, and, if not, to the next term thereof, at which term the court shall order the proceeds of the sale to be divided among the several claimants in proportion to their respective interests after deducting the expenses of the proceedings. The commissioners shall be liable to rule by the superior court as sheriffs are liable for all moneys which they have or may receive for the lands sold by them and which they are required by law to return to the court for distribution; and, in case they shall fail to pay the money into court in obedience to a rule against them, they shall be immediately attached as for a contempt and imprisoned without bail until such payment is made.

44-6-169.

Upon the sale of lands and tenements as provided for in Code Section 44-6-167, the parties in interest shall execute a title to the purchaser; and, if any of them shall fail or refuse to do so, the commissioners or any two of them shall execute a deed of conveyance to such lands and tenements to the purchaser at such sale, which deed shall be as valid and binding as if made by the parties themselves.

44-6-170.

In any extraordinary case not covered by Code Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet the exigency of the case without forcing the parties into equity; and the court may deny a sale or partition altogether if it is manifest that the interest of each party will not be fully protected.

Enjoining partition. – It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29, 295 S.E.2d 736 (1982).

Not applicable to joint-tenants with a right of survivorship. – This section has long been construed to apply only to tenants in common, not to joint-tenants with a right of survivorship. Wallace v. Wallace, 260 Ga. 400, 396 S.E.2d 208 (1990).

Exclusive possession by one spouse defeats partitioning by other. – Whether the property is held by husband and wife as tenants in common or as joint-tenants, if it is subject to the exclusive possession of one of them, it is not subject to partitioning by the other. Wallace v. Wallace, 260 Ga. 400, 396 S.E.2d 208 (1990).

Cited in Wilkinson v. Tuggle, 61 Ga. 381 (1878); Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905); Mize v. Bank of Whigham, 138 Ga. 499, 75 S.E. 629 (1912); Knowles v. Knowles, 146 Ga. 507, 91 S.E. 776 (1917); English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1917); Clements v. Seaboard Air-Line Ry., 158 Ga. 764, 124 S.E.2d 516 (1924); Jennings v. Jennings, 173 Ga. 428, 160 S.E. 405 (1931); Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945); Joel v. Joel, 201 Ga. 520, 40 S.E.2d 541 (1946); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Mixon v. Sumner, 205 Ga. 579, 54 S.E.2d 411 (1949); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); Bufford v. Bufford, 221 Ga. 13, 142 S.E.2d 796 (1965); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396, 144 S.E.2d 764 (1965); White v. Howell, 224 Ga. 135, 160 S.E.2d 374 (1968); Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970); Wilkerson v. Wilkerson, 126 Ga. App. 172, 190 S.E.2d 140 (1972); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975); Seymour v. Presley, 239 Ga. 572, 238 S.E.2d 347 (1977); Crooke v. Gilden, 262 Ga. 122, 414 S.E.2d 645 (1992).

Distinction Between Law and Equity

Tenant in common or co-owner entitled to petition for either statutory or equitable partition. Billings v. Billings, 242 Ga. 632, 250 S.E.2d 480 (1978).

Application to partition certain land is a purely statutory proceeding. Nash v. Williamson, 212 Ga. 804, 96 S.E.2d 251 (1957).

Statutory proceedings partake of the nature of proceedings in equity. Waycross Military Ass’n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).

Application for partition and accounting under this part is in nature of proceeding in equity. Poole v. Poole, 220 Ga. 3, 136 S.E.2d 745 (1964).

Equitable jurisdiction applicable only where peculiar circumstances or insufficient legal remedy. – An application to partition lands between tenants in common may be instituted at law, or it may be brought in equity whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just. But, unless for some special reason equitable jurisdiction is applicable, a party seeking the writ of partition is required to resort to the remedy afforded by this section. Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).

Accounting alone gives court of equity jurisdiction of partition proceeding. – While equity jurisdiction ceases where the legislature gives a specific remedy at law, and while a specific legal remedy for partition is provided, and while equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there are other peculiar circumstances which render the proceeding in equity more suitable and just. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).

Error for court to dismiss equitable proceeding after amended petition sets cause of action. – After an amendment of the petition set out a cause of action for equitable partition, it was error for the court to dismiss the action on the ground that by amendment it had been changed from an equitable to a statutory proceeding for partition, or that it did not set forth a cause of action. Gibson v. Gibson, 180 Ga. 457, 179 S.E. 354 (1935).

Circumstances Supporting Partition

No right of partitioning unless property held in common. – Under the plain wording of this section, the right to have a partitioning does not exist unless the property sought to be partitioned is held under a joint tenancy or a tenancy in common. Paris v. Clay, 223 Ga. 738, 158 S.E.2d 377 (1967).

Any co-owner may apply for partition writ. – The section relating to partition of realty expressly provides that, in all cases where two or more persons are common owners of land by descent, any one of such owners may apply for a writ of partition. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980).

Division under will had without interference from executors. – Where a will provides for a division, the remaindermen become tenants in common and the division may be had without any interference, under this section, from the executors. Watkins v. Gilmore, 121 Ga. 488, 49 S.E. 598 (1904).

Under this section, a division may be had without an interference from the executors. Miller v. Harris County, 186 Ga. 648, 198 S.E. 673 (1938).

Heirs are not compelled to get the consent of the administrators before a partition. Hunnicutt v. Rogers, 135 Ga. 595, 69 S.E. 913 (1911).

Existence or nonexistence of administration of estate does not preclude bringing partition action by a tenant in common. Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980).

Executors can join with the surviving cotenant for the partition of land owned jointly by their testatrix and the surviving cotenant, where the testatrix makes devises of the land, and where the partition of the land between the estate and the surviving cotenant is necessary for its due administration by the executors. Peck v. Watson, 165 Ga. 853, 142 S.E. 450, 57 A.L.R. 560 (1928).

Voluntary partition by tenants not binding on remaindermen. – Where the tenant in fee of a half undivided interest, by voluntary agreement to which the remaindermen were not parties, partitioned land, the partition is binding upon the tenants in fee alone so long as the limited estate of the life tenant continues, even though the remainderman assented to the partition. Teasley v. Hulme, 150 Ga. 495, 104 S.E. 151, 12 A.L.R. 641 (1920).

Defeasible fee under will providing how tenants’ interest can be sold cannot be partitioned. – Tenants in common having a defeasible fee in land devised under a will, which provides how their interest can be sold during their joint lives, cannot have the devised property partitioned, either by statutory or equitable proceedings. Trimble v. Fairbanks, 209 Ga. 741, 76 S.E.2d 16 (1953).

Procedure

Superior courts alone have jurisdiction under this section. An application for partition to a city court is a nullity and not amendable. Roberson v. Bennett, 20 Ga. App. 590, 93 S.E. 297 (1917).

Petitioners abandoning statutory proceedings and instituting probate proceedings bound by probate court’s judgment. – Where parties holding as heirs an undivided interest in lands have abandoned, without formally dismissing, a proceeding instituted in the superior court for partition, and agreed among themselves to institute such a proceeding in the court of ordinary (now probate court) to bring about a partition of the same lands, and this is done by an appropriate proceeding in that court, resulting in a judgment confirming the assignment of the various parcels by the appraisers, no objection being filed or appeal taken, they are bound by the judgment. They will not subsequently be permitted to disregard such judgment, and seek, by amendment to the original petition in the superior court, another partitioning of the lands. Zeagler v. Zeagler, 192 Ga. 453, 15 S.E.2d 478 (1941).

Sufficiency of application for partition. – An application for partition need only set forth the circumstances of the case, describe the premises to be partitioned, and define the share and interest of each of the parties as provided in section. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

It is immaterial whether petition prays for partition by sale or by metes and bounds, since in an application in either form the issues are the same. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

Premises must be described and the interest of each party defined. Childs v. Hayman, 72 Ga. 791 (1884).

Process or prayer for process attached thereto, is not required. Griffin v. Griffin, 153 Ga. 547, 113 S.E. 161 (1922).

Applicant must show title in himself and name each person who may own interest. – In order for a partition proceeding to be maintainable, the applicant must not only show title in himself to a specified interest in the property sought to be sold or divided, but must name as a defendant each of the other persons who may own an interest therein, and set forth their respective interests. Hill v. McCandless, 198 Ga. 737, 32 S.E.2d 774 (1945).

Defendant may controvert complainant’s title or deny cotenancy. – In a bill for partition, it is not necessary that the complainant’s title to the property should be fully set out. However, the defendant may, by plea or answer, controvert the complainant’s title to the whole or any part of the property, or deny the cotenancy, in which event, a preliminary trial should be had to settle these issues. Dollar v. Dollar, 214 Ga. 499, 105 S.E.2d 736 (1958).

Respondent in partition proceeding can only set up matters germane to the case as made by the applicant’s petition, and cannot recover a personal judgment against the applicant on a separate and independent matter. Starling v. Starling, 214 Ga. 786, 107 S.E.2d 651 (1959).

Not error to allow petitioners’ transferee to be made party plaintiff. – Where, pending an application for partition of realty under this section the original petitioners sold their interest to another person, the proceedings were not thereby vacated, and it was not error to allow the other person to be made a party plaintiff in the application, it not appearing that the original petitioners were dismissed. Hamby Mt. Gold Mines v. Calhoun Land & Mining Co., 83 Ga. 311, 9 S.E. 831 (1889).

Venue of statutory proceeding for partition of land is the county where the land lies. Douglas v. Johnson, 130 Ga. 472, 60 S.E. 1041 (1908).

A statutory partition action under this section, which can bestow title on both parties and divest both parties of title, is a case “respecting title to land” and must be brought in the county where the land lies. Schuehler v. Pait, 239 Ga. 520, 238 S.E.2d 65 (1977).

Judgment, until set aside, binding upon all parties with notice. – A judgment rendered in partition proceedings under this section, until reversed or set aside, is binding upon all who were parties to the proceedings with due notice thereof, whatever may be its effects as to another co-owner, to whom no such notice was given. Chattahoochee Lumber Co. v. Yeates, 137 Ga. 64, 72 S.E. 504 (1911).

Service on the parties, actual or constructive, is necessary to render the judgment conclusive. Childs v. Hayman, 72 Ga. 791 (1884).

Judgment admissible in later suit to establish plaintiff’s title. – A judgment is admissible in a suit for an injunction and damages committed upon the property set apart to the plaintiff to establish the plaintiff’s title to such a portion. Chattahoochee Lumber Co. v. Yeates, 137 Ga. 64, 72 S.E. 504 (1911).

Appellate jurisdiction over cases involving statutory partition is in the Supreme Court of Georgia. However, where the sole issue in an appeal is the recusal of the trial court such an issue in no way deals with an area where exclusive jurisdiction rests in the Supreme Court. It is the Court of Appeals which has jurisdiction to entertain the appeal since it is not what is in the complaint before the trial court that determines the Supreme Court’s jurisdiction, but the issues on appeal. Stevens v. Myers, 190 Ga. App. 61, 378 S.E.2d 334 (1989).

Jurisdiction of appeal from judgment in action involving statutory partitioning proceedings is in Supreme Court, as partition action is one “respecting title to land.” Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975).

Appeal not timely until judge appoints commissioners and orders sale. – In a case where a partition is sought by bringing the lands involved to sale, the objecting party may only bring the case to the Supreme Court by a proper bill of exceptions after the judge has appointed commissioners and ordered them to sell the land. Lanier v. Gay, 195 Ga. 859, 25 S.E.2d 642 (1943).

Relief Granted

Court empowered to determine all various matters in dispute. – Proceedings under this section are in the nature of proceedings in equity. The court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, in respect to their respective titles, as fully and completely as if it were a bill in chancery for that purpose. Griffin v. Griffin, 33 Ga. 107 (1861); Hamby Mt. Gold Mines v. Calhoun Land & Mining Co., 83 Ga. 311, 9 S.E. 831 (1889).

Where a tenant in common applies to the superior court to have certain land partitioned, and to have an accounting between the tenants in common, a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Gibson v. Gibson, 180 Ga. 457, 179 S.E. 354 (1935); Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943); Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755 (1958).

Partition in kind is the rule and should be generally followed, unless it cannot be conveniently made, or the interest of the parties will be promoted by a sale. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

Error to appoint receiver where no necessity proved and defendant solvent. – Where, on the trial of an equitable petition for the partition of real estate, accounting, the settlement of accounts between the tenants in common, the settlement of an estate, and the appointment of a receiver, the evidence shows that the defendant against whom the charges of waste, mismanagement, etc., were made is solvent, and no necessity for a receivership is proved, it is error to appoint receivers to take possession of and to hold and manage the property in question pending final disposition of the case. Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755 (1958).

Proper to hold funds pending trial of accounting suit. – In the case of a partition by sale, it is proper for the decree to direct that the funds be held in court pending the trial of the action for accounting. Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755 (1958).

Court’s power extends to an accounting between the tenants in common. Griffin v. Griffin, 153 Ga. 547, 113 S.E. 161 (1922).

In an equitable partitioning proceeding, the court has adequate authority to have the property of the tenants in common partitioned, to require any of the tenants in common to account for rents and profits received by any of them from the jointly owned property, and it can adjust the accounts. Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755 (1958).

Court may make adjustments for improvements and expenditures. – Where the court has jurisdiction, it may, in decreeing partition, make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Where, in pursuance of an agreement between several tenants in common, two of them enter upon the land and make expenditures of money in improvements thereon in excess of the amount received in rents, they are entitled, upon a partition of the land under this section, to an accounting from their cotenants, and to be reimbursed the amount properly found to be due them. Turnbull v. Foster, 116 Ga. 765, 43 S.E. 42 (1902).

Court can question the mesne profits. Hall v. Collier, 146 Ga. 815, 92 S.E. 536 (1917).

Proceedings limited to partitioning. – Proceedings under this section cannot be had for the purpose of partitioning a large tract of land with certain alleged tenants in common with the applicant, and at the same time of recovering parts of the land held adversely not under the alleged tenants in common, and also of having an accounting for rent. Cock v. Callaway, 141 Ga. 774, 82 S.E. 286 (1914).

Applicants not entitled to have fees awarded to counsel. – In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951).

Plaintiff who brought an action to quiet title and for partitioning of property was not entitled to an award of attorney fees and expenses since the statutes providing for such actions do not provide for attorney fees and expenses and such an award was not authorized if the case was considered one at law. Walker v. Walker, 266 Ga. 414, 467 S.E.2d 583 (1996).

Illustrative Cases

Allegation of petition was sufficient to set out an equitable cause of action for partition of land under this section. Byrd v. Byrd, 180 Ga. 548, 179 S.E. 818 (1935).

Equitable partition found authorized. – Where two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and where, after the station had been used by both companies jointly and individually for several years, the company that did not own the land because insolvent, and all its property, including its interest in the station, was duly sold under foreclosure proceedings brought in a court of competent jurisdiction and purchased by private individuals, and where the railroad of this company was dismantled and its business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225, 152 S.E. 243 (1930).

Agreement between cotenants not a partnership. – An agreement between the cotenants of a city lot, on which is located a residence, to occupy the same jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the co-owners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).


3. Who May Apply for Partition of Real Property in Georgia?

O.C.G.A. §44-6-161 Who may apply for partition.

If the party desiring the writ of partition is of full age and free from disability, he may make the application either in person or by his agent or attorney in fact or at law. An application may be made for the benefit of a minor, a mentally ill or retarded person, or the beneficiary of a trust by the guardian of such minor, the guardian of such mentally ill or retarded person, or the trustee of such beneficiary, as the case may be.

JUDICIAL DECISIONS.

No provision for partition where infant has no guardian. – By this section, provision is made to have a partition for an infant when represented by a guardian, but there seems to be none where the infant has no guardian and is represented by his next friend. Lowe v. Burke, 79 Ga. 164, 3 S.E. 449 (1887).

Cited in Perdue v. McKenzie, 194 Ga. 356, 21 S.E.2d 705 (1942); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).


4. What Prior Notice Must be Given before Real Property May be Partitioned in Georgia?

O.C.G.A. § 44-6-162 Notice of intention to apply for the Writ of Partition.

The party applying for the writ of partition shall give the other parties concerned at least 20 days’ notice of his intention to make the application. If any of the other parties is a minor, a mentally ill or retarded person, or a beneficiary of a trust, the 20 days’ notice shall be served on the guardian of such minor, the guardian of such mentally ill or retarded person, or the trustee of such beneficiary. If any of the parties reside outside of this state, the court may order service by publication as in its judgment is right in each case.

The 1991 amendment, effective March 14, 1991, part of an Act to correct errors and omissions in the Code, revised language in this Code section.

Law Reviews. – For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

JUDICIAL DECISIONS.

Section inapplicable where petition prays for sale of lands. – Where the petition stated an equitable cause of action for partition and accounting under § 44-6-167, the provisions of this section do not apply. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).

No process is required except the notice under this section. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

As this is a special statutory proceeding, the notice of intention is the only process necessary in order to bring the defendant into court to meet the application for partition. Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970).

Petition does not require any process or prayer for process attached to it. Griffin v. Griffin, 153 Ga. 547, 113 S.E. 161 (1922).

Notice of application for partition is equivalent of process in the statutory proceeding for partition, which is not in rem. Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).

Applicant must show title in himself and name each person who may own interest. – In order for a statutory partition proceeding to be maintainable, the applicant must not only show title in himself to a specified interest in the property sought to be sold or divided, but must name as defendant each of the other persons who may own an interest therein, and set forth their respective interests. Hill v. McCandless, 198 Ga. 737, 32 S.E.2d 774 (1945).

Notice to grantee in recorded deed to secure debt required. – Where the petition showed that a recorded deed to secure a debt was outstanding against the property sought to be partitioned, and it not appearing that the grantee in the deed had been properly notified of the application for the partition, so as to bring the grantee into the proceeding, the petition should have been dismissed. Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).

Trustee empowered to sell and reinvest premises proper, but not necessary, party. – A trustee who, by the deed of trust, has a power of sale and reinvestment, is a proper, though not a necessary, party in a proceeding to partition the premises amongst the beneficiaries. Welch v. Agar, 84 Ga. 583, 11 S.E. 149, 20 Am. St. R. 380 (1890).

Service upon minor will not enforce appearance of minor after he has arrived at age. Welch v. Agar, 84 Ga. 583, 11 S.E. 149, 20 Am. St. R. 380 (1890).

Part of this section relating to service by publication is not repealed by general provisions on the same subject in § 9-10-71. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).

Where no application has been filed, judge has no jurisdiction to order service by publication. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).

Defendant failing to appear after receiving notice cannot have partition order revoked. – Where the defendant, after receiving the notice provided by this section, failed to appear, she could not thereafter have the order for partition revoked and set aside on the ground that the court did not have jurisdiction to entertain the equitable petition at the time. Gammon v. Holloway-Smith Co., 150 Ga. 253, 103 S.E. 154 (1920).

Cited in Childs v. Hayman, 72 Ga. 791 (1884); Miller v. A.M. Watson & Co., 135 Ga. 408, 69 S.E. 555 (1910); English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924); Cates v. Duncan, 178 Ga. 748, 174 S.E. 380 (1934); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Starling v. Starling, 214 Ga. 786, 107 S.E.2d 651 (1959); Brinson v. Thornton, 220 Ga. 234, 138 S.E.2d 268 (1964); Evans v. Little, 246 Ga. 219, 271 S.E.2d 138 (1980); Iteld v. Siverboard, 247 Ga. 158, 275 S.E.2d 645 (1981).


5. How is the Writ of Partition Issued?

O.C.G.A. § 44-6-163 Issuance of Writ of Partition; Appointment of Partitioners.

When the application for partition is made and when due proof is made that the notice required by Code Section 44-6-162 has been given, the court shall examine the petitioner’s title and share of the premises to be partitioned and shall thereupon pass an order directing the clerk of the superior court to issue a writ of partition which shall be framed according to the nature of the case and directed to five freeholders of the county in which the lands are located who shall serve as partitioners; and the court shall execute and return the writ as provided in Code Section 44-6-164.

JUDICIAL DECISIONS.

Judge required to see that apparent interest in applicant exists. – This section does not require that the judge shall have a trial of the application at once upon its presentation, but that he should himself see that some apparent interest in the applicant exists. Cock v. Callaway, 141 Ga. 774, 82 S.E. 286 (1914).

Writ of error will not lie to interlocutory judgment provided for in this section; the rule is the opposite where it is the judgment of confirmation that is questioned. Berryman v. Haden, 112 Ga. 752, 38 S.E. 53 (1901); Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).

Cited in Gamble v. Brooks, 170 Ga. 662, 153 S.E. 759 (1930); Cates v. Duncan, 178 Ga. 748, 174 S.E. 380 (1934); Wood v. W.P. Brown & Sons Lumber Co., 199 Ga. 167, 33 S.E.2d 435 (1945); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).


6. How is the Writ of Partition Returned?

O.C.G.A. § 44-6-164 Appointment of surveyor; notice of time of execution of writ; oath of partitioners; principles governing partition; partitioner’s return.

The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days’ notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. They shall return the writ, with their actings and doings thereon and under their hands and seals, to the superior court within three months after its issuance, which return shall be filed and kept by the clerk until the next term of the court.

JUDICIAL DECISIONS.

Court authorized to pay surveyor. – The employment of a surveyor contemplates payment, and the court, in the exercise of its powers in these equitable proceedings, would be authorized to provide for such. Liddell v. Johnson, 214 Ga. 861, 108 S.E.2d 878 (1959).

Notice required by this section need not be in writing. Ralph v. Ward, 109 Ga. 363, 34 S.E. 610 (1899).

No provision is made for the return or entry of such notice. English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924).

Provision of this section requiring partitioners to make their return within three months after issuance of writ is directory rather than mandatory, and a delay will not require dismissal of the return unless it was caused by the applicant or it appears that a substantial right of the respondents has been prejudiced. Williams v. Williams, 159 Ga. App. 351, 283 S.E.2d 344 (1981).

Effect of taking oath after return filed. – Where the return of the partitioners appointed to partition land had been made and filed, and an objection was made thereto by the defendant on the ground that the partitioners had not taken the oath required of them by this section, and they were ordered by the court to make and file a new return after having taken the oath required, and where they made and filed a new return, the latter return was not void and illegal upon the ground that the partitioners had no authority in law to make it, or were disqualified, and the proceedings were not subject to dismissal upon the ground that, with the making of their first return, the writ of partition became functus officio. McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932).

Cited in Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).


7. What happens if the Other Owners Object and Demand a Jury Trial?

Once the Return of the Partitioners is filed with the Court, the property may or may not proceed to division or sale. If no formal objection is filed, the Petitioner make seek relief directly from the Court. If, however, a formal objection is filed by a co-tenant or “any of the persons against whose right or title a judgment is sought,” the action proceeds to trial. The statute provides for a trial by jury, however, if the parties are well represented and the judge versed in real property law, it is far more expedient to try the case to the bench.

With regard to a view toward appeal, attorneys venturing into Partitioning should carefully weigh the right to trial by jury. A jury trial may generate needless appellate objections that would not occur, if the case is merely tried to the bench. Real estate trials can be mindnumbing for a jury, however, the threat of a jury trial is a strong counterbalance to an aggressive partitioner.

O.C.G.A.§ 44-6-165 Objections and Defenses to Right of Petitioner, Writ, or Return; Allowance of Jury Trial.

At the term of the court when the application is made or at the next term after the partitioners have made their return, any of the persons against whose right or title a judgment is sought may file objections to the right of the applicant and the writ of partition or to the return of the partitioners, as the case may be, and may, by way of defense, show any good and probable matter in bar of the partition asked for or show that the petitioner does not have title to as much as is allowed and awarded to him by the partitioners or to any part of the land; in such event, the issue shall be tried by a jury as in cases of appeals to the superior court.

JUDICIAL DECISIONS.

Section has no application to the equitable partition provided for by § 44-6-140. Drew v. Drew, 151 Ga. 11, 105 S.E. 469 (1921).

This section provides that in a partition proceeding (at law) where title to the land is at issue, the issue shall be tried by a jury as in appeal cases. It is not applicable to an equitable partition. Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).

Interested party must be given “reasonable time” to file objections. – One at interest must be given a “reasonable time” after the filing of the application for partition in which to file objections. Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970).

Objections cannot be filed later than next court term. – Objections to an application for a partition or to the return of the partitioners may not be filed later than the term next after the partitioners have made their return. Cates v. Duncan, 181 Ga. 686, 183 S.E. 797 (1936).

Objections need not be under oath. Webb v. Till, 134 Ga. 388, 67 S.E. 1034 (1910).

Want of affidavit no cause for rejection. – Where an amended answer would have set up a valid defense, a want of an affidavit would be no cause for rejecting it. Mize v. Bank of Whigham, 138 Ga. 499, 75 S.E. 629 (1912).

Defendant may deny applicant’s title. – Where an alleged tenant in common denies that the applicant is a cotenant, it is error for the court to order partition without joining issue. Douglas v. Johnson, 130 Ga. 472, 60 S.E. 1041 (1908).

Defendant may show that another person, not named and served, has interest in property. – Even though an applicant may correctly set forth his own interest in the property which he seeks to have sold for the purpose of partition, and even though he names as a defendant another person, and correctly sets forth the interest in the property belonging to him, the defendant may appear for the purpose of showing that another and different person, not named as a defendant, and not served, has an interest in the property, and that therefore the applicant is proceeding illegally. Hill v. McCandless, 198 Ga. 737, 32 S.E.2d 774 (1945).

Defense may show that equitable division can be made without sale. – The defendant may caveat the return of the partitioners, and introduce evidence to show that a fair and equitable division of the land can be made by metes and bounds without ordering a sale. McCann v. Brown, 43 Ga. 386 (1871).

Objections on grounds previously adjudicated not authorized. – This section must be construed in harmony with the rule as to the conclusiveness of judgments, and will not authorize parties to file objections to the return of the partitioners on grounds which were adjudicated upon the hearing of the application for their appointment. Cates v. Duncan, 181 Ga. 686, 183 S.E. 797 (1936).

Judge may pass upon application without jury where sufficient matter in bar not set up. Brown v. Mooney, 108 Ga. 331, 33 S.E. 942 (1899).

Time for trial discretionary. – If the defendant has time, in the judgment of the court, to prepare and file his objections, the trial should be at the term in which application is made; otherwise it should be tried at the next term thereafter. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433, 50 S.E. 372 (1905).

Where no objections were raised to hearing at time, judgment will not be reversed. Cock v. Callaway, 141 Ga. 774, 82 S.E. 286 (1914).

Evidence showing nondelivery of deeds admissible without special pleading. – Upon the trial of an issue as to title, evidence tending to show nondelivery of certain deeds is admissible without special pleading. Lowry v. Lowry, 150 Ga. 324, 103 S.E. 813 (1920).

Cited in Rodgers v. Price, 105 Ga. 67, 31 S.E. 126 (1898); Brown v. Tomberlin, 137 Ga. 596, 73 S.E. 947 (1912); Culver v. Pierce, 148 Ga. 300, 96 S.E. 497 (1918); Cates v. Duncan, 180 Ga. 289, 179 S.E. 121 (1935); Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945); Armstrong v. Merts, 76 Ga. App. 465, 46 S.E.2d 529 (1948); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396, 144 S.E.2d 764 (1965); Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969); Lowe v. Lowe, 123 Ga. App. 525, 181 S.E.2d 715 (1971); Williams v. Williams, 159 Ga. App. 351, 283 S.E.2d 344 (1981).


8. Is the Return of the Writ of Partition Conclusive and Binding on the Owners of the Land and Land Title?

O.C.G.A. § 44-6-166 Return of partitioners as judgment of court; conclusiveness; when second partition ordered; effect.

If no objection to the return of the partitioners is filed by any of the parties or if, being filed, the jury on the trial finds a verdict against the party setting up such objections, the return of the partitioners shall be made the judgment of the court and shall be final and conclusive as to all the parties concerned who were notified of the application for partition and of the time of executing the writ as required by Code Sections 44-6-162 and 44-6-164, and a writ of possession shall issue accordingly. If objections to the return are filed and are sustained by the jury trying the case or if it appears to the court that there is injustice or inequality in the division made by the partitioners, the court shall award a new partition to be made in the presence of the parties concerned if they will appear, which second partition, when returned, shall be firm, good, and conclusive forever against all parties notified as provided in Code Sections 44-6-162 and 44-6-164.

JUDICIAL DECISIONS.

Section is applicable only to a partition by metes and bounds. Childs v. Hayman, 72 Ga. 791 (1884).

Party entitled to except to second return. – When a return of the partitioners is set aside by the verdict of a jury on objections filed thereto, and a new partition is awarded by order of the court, either party has the right to except to the second return before it is made the judgment of the court, and to have his objection passed upon by a jury. Lancaster v. Morgan, 54 Ga. 76 (1875). See also McCann v. Brown, 43 Ga. 386 (1871).

Judgment final and conclusive. – If the partitioning is statutory, the judgment of the court is final and conclusive as to all parties who were notified of the application for partition. Barron v. Lovett, 207 Ga. 131, 60 S.E.2d 458 (1950).

Cited in Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952).


9. What Happens to Property that May not be divided by Metes and Bounds or by any type of Physical Division?

When property that is subject to partition cannot be divided by metes and bounds or any other form of physical division, a petition may be filed to have the property sold and the monetary proceeds divided among the owners. This type of partition requires a 20 day notice of intent to partition. Unless there is an agreement between and among the owners to compromise their differences prior to sale (and more often than not, a compromise is reached) the property will be sold on the courthouse steps to the highest bidder without reserve. [The law is unclear whether the sale of partitioning of property pursuant to O.C.G.A. § 44-6-166.1, may initially be offered "with reserve."]

The applicable code sections calls for the following steps to be taken:

O.C.G.A.§ 44-6-166.1 Partition when Physical Division of Property is Inequitable.

(a) As used in this Code section, the term:

(1) “Party in interest” means any person, other than a petitioner, having an interest in property.

(2) “Petitioner” means any person petitioning for partition of property.

(3) “Property” means lands and tenements sought to be partitioned pursuant to this subpart.

(b) Whenever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for, the court shall proceed pursuant to this Code section.

(c) The court shall appoint three qualified persons to make appraisals of the property. The average of the three appraisals shall constitute the appraised price of the property for purposes of this Code section. Notice of the amount of the appraised price shall be served on the petitioners and all parties in interest within five days after the appraised price is established.

(d) Within 15 days after the appraised price is established, upon request to the court and grant thereof, any petitioner may withdraw as petitioner in the partition action and become a party in interest and any party in interest may become a petitioner in the action. Any petitioner remaining as such after the fifteenth day may be paid, pursuant to this Code section, his respective share of the appraised price corresponding to his respective share of the property. This payment shall constitute complete satisfaction of all of that petitioner’s claims to and interest in that property. If no petitioner remains in the partition action after that fifteenth day, the proceeding shall be dismissed, and the petitioners who have withdrawn shall be liable for the costs of the action, including but not limited to the appraisal costs.

(e) (1) No sooner than 16 days and no later than 90 days after the appraised price is established, the parties in interest shall tender to the court sufficient sums to pay to petitioners their shares of the appraised price, as determined by their respective shares in the property, or the property shall be subject to public sale pursuant to Code Section 44-6-167. If the property is subject to such public sale, the petitioner and the parties in interest shall be liable for appraisal costs under this Code section in proportion to their respective interests in the property.

(2) Each party in interest may pay toward the amount required to purchase any petitioners’ shares of the appraised price an amount in proportion to that party’s share of the total shares of property of all parties in interest, unless one party in interest authorizes another party in interest to pay some or all of his proportionate share of the shares available for sale. The share of each party in interest in the property shall be increased by the share that party pays toward the purchase of petitioners’ shares in the property.

(f) Within 95 days after the appraised price is established, unless the property becomes subject to public sale pursuant to paragraph (1) of subsection (e) of this Code section, the petitioners shall execute title to the parties in interest for the property in return for payment to the petitioners, from sums tendered to court under subsection (e) of this Code section, of their respective shares of the appraised price. Petitioners and parties in interest shall be liable for costs of the sale and proceedings relating thereto under this Code section in proportion to their respective shares in the property prior to that sale.

Law Reviews. – For annual survey of real property law, see 41 Mercer L. Rev. 317 (1989).

JUDICIAL DECISIONS.

Conditions necessary before section applicable. – Partition in kind is the rule and this section constitutes the exceptions. Two concurring conditions are necessary before it will be applied: (1) the partition in kind cannot be made; and (2) the interest of the parties owning the land will be promoted. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

“Court,” meaning the judge, shall determine whether partition may be had by metes and bounds. Rodgers v. Price, 105 Ga. 67, 31 S.E. 126 (1898).

Where the only question before the court is whether or not a fair and equitable division of the land can be made by metes and bounds, the judge has the legal right under this section to determine this question without the intervention of a jury. Jennings v. Jennings, 173 Ga. 428, 160 S.E. 405 (1931).

And requisite that court must look to interest of parties means interest of all parties; the fact that one of the parties to the application might be benefited would not justify it. Tucker v. Parks, 70 Ga. 414 (1883).

Petition for partition by metes and bounds sufficient. – A partition of the proceeds of the sale of the lands and tenements is in all essential particulars a partition of the lands and tenements, and it is immaterial whether the applicant prays for a partition by sale or a partition by metes and bounds. In an application in either form and with either prayer, the issues are the same. Anderson v. Anderson, 27 Ga. App. 513, 108 S.E. 907, cert. denied, 27 Ga. App. 835 (1921).

Burden of proof is upon party asserting that equitable division of land cannot be made to affirmatively show this fact. And where no evidence was introduced on the issue, and the judgment sustained the application for partition of the land in kind, the judgment will not be reversed on the ground that there was no evidence to show that the land was incapable of subdivision. Jennings v. Jennings, 173 Ga. 428, 160 S.E. 405 (1931).

Court order as to payment for property appealable. – An order of the trial court providing that a party may tender the appropriate portion of the appraised price of the property to the court by a date certain or the property will be subject to public sale is a final judgment which may be appealed directly to the Supreme Court. Lassiter Properties, Inc. v. Gresham, 258 Ga. 500, 371 S.E.2d 650 (1988).

Availability of remedy of public sale. – Even if a party in interest does not pursue the remedy under this Code section, the petitioner may still seek a public sale under § 44-6-167 by convincing the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements on the property, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for. Stone v. Benton, 258 Ga. 539, 371 S.E.2d 864 (1988).


10. What Discretion Does the Judge have In Partitioning in Georgia?

O.C.G.A. § 44-6-170 Treatment of Extraordinary Cases; Denial of Sale or Partition.

In any extraordinary case not covered by Code Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet the exigency of the case without forcing the parties into equity; and the court may deny a sale or partition altogether if it is manifest that the interest of each party will not be fully protected.

JUDICIAL DECISIONS.

It is improper to force party into equity to obtain dissolution of copartnership in property before applying a writ of partition. Jackson v. Deese, 35 Ga. 84 (1866).

That applicant holds deed as security only is patent reason for denying his petition, unless special reason can be shown for his not using his appropriate statutory remedy. Welch v. Agar, 84 Ga. 583, 11 S.E. 149, 20 Am. St. R. 380 (1890).

Cashier’s check partitionable. – The novelty of the procedure in partitioning a cashier’s check payable to the plaintiff and the defendant jointly, and the probable existence of other remedies to determine the title or rights of the parties in the fund, would not defeat the remedy sought, which is given by this section and others. English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924).

Changes occurring after sale cannot mandate partition in kind. – Changes in conditions occurring after an order of sale which facilitate partition by metes and bounds do not mandate such a division. McClain v. McClain, 241 Ga. 162, 243 S.E.2d 879 (1978).

Cited in Tucker v. Parks, 70 Ga. 414 (1883); Brown v. Mooney, 108 Ga. 331, 33 S.E. 942 (1899); Smith v. Smith, 133 Ga. 170, 65 S.E. 414 (1909); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); White v. Howell, 117 Ga. App. 778, 161 S.E.2d 892 (1968); Sanders v. Darnell, 238 Ga. 362, 233 S.E.2d 180 (1977).


11. How is Partition of a Life Estate Accomplished?

O.C.G.A. § 44-6-172 Partition of realty by Life Tenants – Effect on other Parties; Conditions.

In all cases where an undivided interest in real estate has been or may be granted or devised to a person for his lifetime with remainder or reversion to others, such life tenant may compel a partition pursuant to the partition laws of this state which may, upon a proper judgment of the superior court based upon an application therefor, bind all parties interested whether in possession, reversion, or remainder and whether or not those entitled to take are in being, provided the property is capable of fair and equitable partition and such fact is adjudicated by the court in such proceeding. No sale of the property may be made or had under such application for partition, and the terms of the grant or devise shall otherwise remain in full force and effect.

Law Reviews. – For article surveying recent legislative and judicial developments in Georgia’s real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS.

This section relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56, 195 S.E.2d 413 (1973).

Prior right to sell land unaffected by section. – If a life tenant had a right to sell the land upon petition prior to the enactment of this section, it was not taken away by this section. Williams v. Colleran, 230 Ga. 56, 195 S.E.2d 413 (1973).

Life tenant may not acquire portion in fee. – Although a life tenant, in the proper circumstances, may seek partition, it may not be accomplished by the life tenant acquiring a portion of the land in fee simple. McGhee v. Brown, 244 Ga. 478, 260 S.E.2d 873 (1979).

Cited in Sanders v. Darnell, 238 Ga. 362, 233 S.E.2d 180 (1977); Billings v. Billings, 242 Ga. 632, 250 S.E.2d 480 (1978).

O.C.G.A. § 44-6-173 Partition of realty by Life Tenants – Appointment of Guardians ad Litem; Service of Notice of Application; Time for Answer.

(a) Under the partition proceeding provided in Code Section 44-6-172, the court shall appoint a guardian ad litem to act for and represent all unborn remaindermen or reversioners on such terms as may be ordered by the court. When interested minors are not represented by a guardian, the court shall also appoint a guardian ad litem to act for and represent such minors.

(b) The guardian ad litem shall be served with a notice of the application for partition. After the application has been filed in the superior court, all other parties shall also be served with notice of the application for partition. The guardian ad litem and all other parties who have been served with the notice shall answer and plead to the application for partition within 20 days after the service of the notice; provided, however, that the court may authorize the guardian ad litem to acknowledge service and waive the 20 days’ notice.

JUDICIAL DECISIONS.

This section relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56, 195 S.E.2d 413 (1973).

JUDICIAL DECISIONS.

This section relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56, 195 S.E.2d 413 (1973).

Prior right to sell land unaffected by section. – If a life tenant had a right to sell the land upon petition prior to the enactment of this section, it was not taken away by this section. Williams v. Colleran, 230 Ga. 56, 195 S.E.2d 413 (1973).


12. How is Personal Property Partitioned?

O.C.G.A. § 44-12-1 Partition of Personal Property.

Application may be made and partition of personal property may be obtained in the same manner and under the same regulations as are prescribed by law for obtaining a partition of lands and tenements.

Law Reviews. – For article, “Joint Bank Accounts: A Different Form of Joint Tenancy,” see 17 Ga. St. B.J. 184 (1981).

JUDICIAL DECISIONS.

Superior courts have jurisdiction in matters of partition; therefore, a petition to a city court for a partition of personal property is a nullity and not amendable. Roberson v. Bennett, 20 Ga. App. 590, 93 S.E. 297 (1917).

Cited in Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); Verdery v. Campbell, 203 Ga. 211, 46 S.E.2d 66 (1948).


13. Can a “Time Share” Interest in Real Property be Partitioned?

O.C.G.A. § 44-3-165 Creation oft Time-Share Program; Partition.

(a) A time-share program may be created in any unit, unless expressly prohibited by the project instruments.

(b) No action for partition of a unit may be maintained except as permitted by the time-share instrument.

Most “time share” documents prohibit partition. However, it the instrument does not prohibit it, time shares may be partitioned.

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