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Partition of Real Property

Hugh C. Wood, Esq.

www.woodandmeredith.com

hwood@woodandmeredith.com

Phone: 404-633-4100

When two (2) or more owners, businesses or individuals jointly own land (real property) and there is no method, by contract, will, agreement, or otherwise to divide the real property, any owner may petition the Court to legally divide the property or to sell the property and divide the cash proceeds. Partition actions in Georgia are either: 1) Statutory or 2) Equitable. The law requires that the statutory partition be examined, attempted and explored, prior to the court proceeding to equitable partition. If statutory may not be accomplished or is impracticable, the Court may allow equitable partition.

I. STATUTORY PARTITION

Statutory Partition is Controlled by the below listed Georgia Statutes:

OCGA § 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.

OCGA § 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.

OCGA § 44-6-162. Notice Of Intention To Apply For 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.

OCGA § 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.

§ 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.

OCGA § 44-6-165. Objections And Defenses To Right Of Applicant, Writ, Or Return; 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.

OCGA § 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.

OCGA § 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.

OCGA § 44-6-167. When Sale Of Lands Ordered; Procedure; Place Of Sale; Notice.

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.

OCGA § 44-6-168. Commissioners’ Return; Distribution Of Proceeds; Liability Of Commissioners For Moneys Received; Contempt.

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.

OCGA § 44-6-169. Title To Property Sold; Execution Of Deed Of Conveyance By Commissioners.

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.

OCGA § 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.

OCGA § 44-6-171. Setting Aside Judgment By Parties Under Disability, Absent, Or Not Notified; Time Limitations; Conclusiveness Of Judgment; Effect Of Proceedings On Bona Fide Purchaser.

When proceedings have been instituted and judgment of the partition has been rendered according to the regulations prescribed in this part and if any one of the parties in interest is a minor or a mentally ill or retarded person who has no guardian, or is absent from the state during such proceeding, or has not been notified thereof, such minor or mentally ill or retarded person may, within 12 months after coming of age, after restoration of mind, or after having a guardian appointed, as the case may be, and such absent or unnotified party may, at any time within 12 months after rendition of the judgment, move the court to set aside the judgment on any of the grounds upon which a party notified and free from disabilities might have resisted the judgment upon the hearing as authorized by Code Section 44-6-165. The issue shall be tried and the subsequent proceedings shall be the same as is provided for in cases of objections filed to the return of the partitioners before judgment.

If such motion to set aside the judgment is not made within the time specified in this Code section, such judgment shall be as binding and conclusive upon such minor, mentally ill or retarded person, or absent or unnotified party as if he had been notified, present, or free from disability. In no event shall such subsequent proceedings affect the title of a bona fide purchaser under a sale ordered by the court.

OCGA § 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.

OCGA § 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.

OCGA § 44-6-174. Partition Of Realty By Life Tenants — Cumulative Effect.

The right of partition provided by Code Sections 44-6-172 and 44-6-173 shall be cumulative to existing laws.

[1] Some recent cases on Statutory Partition are listed at the end of this article.

  • EQUITABLE PARTITION

Equitable Partition is authorized by the below listed statutes:

OCGA § 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.

OCGA § 44-6-141. Molding Of Decree; Discretion Of Court.

In every case, the court will mold its decree to meet the general justice and equity of each cotenant and in its discretion may postpone or deny either a partition or a sale if it appears that the present or prospective interest of any cotenant may not be protected thereby.

OCGA § 44-6-142. Effect Of Decree On Title.

The decree on a proceeding for equitable partition shall pass the title without the execution of any conveyances by the parties.

[2] Some recent cases on Equitable Partition are listed at the end of this article.

 

Hugh Wood, Esq.

Wood & Meredith, LLP

3756 LaVista Road

Suite 250

Atlanta (Tucker), GA 30084

Phone: 404-633-4100

Fax: 404-633-0068

 

& & &

Relevant Cases Listed Below

& & &

[1] Statutory Partition Cases

 

 

592 S.E.2d 836 (Ga. 2004)

277 Ga. 632

MANSOUR PROPERTIES et al.

v.

I-85/GA. 20 VENTURES, INC.

No. S03A1484.

Supreme Court of Georgia

February 16, 2004.

Reconsideration Denied March 5, 2004.

Daniel Niles Esrey, eter M. Degnan, Walter W. Wills, Jr., Atlanta, for appellant.

John Patrick O’Brien, Bret Thomas Thrasher, Norcross, for appellee.

[277 Ga. 632] THOMPSON, Justice.

The parties own as tenants in common approximately 110 acres of undeveloped real property in Gwinnett County, Georgia. Appellee I-85/Ga. 20 Ventures, Inc. (“I-85″) successfully petitioned the superior court for statutory partition of the property. Appellants Mansour Properties, L.L.C. and Lifestyle Family, L.P. (“Mansour”) appeal, asserting, inter alia, that I-85 waived the right to seek partition based on the provisions of a written agreement between the parties. We agree and reverse the judgment of the court below.

In 1996, I-85′s predecessor in interest contracted for the purchase of the subject property which is located in close proximity to what is known as the Mall of Georgia. Prior to the closing, the interests in the purchase contract were assigned to I-85 and Mansour. The purchase price was $7,000,000, and each party was to hold a 50 percent undivided interest as tenants in common (with each individual appellant owning 25 percent). Mansour contributed $3,000,000 in cash at the closing, and executed a purchase money promissory note for $500,000. I-85 executed promissory notes and security deeds in the amount of $3,500,000.

[277 Ga. 633] Before purchasing the property, the parties entered into a tenancy-in-common agreement (“the agreement”), specifying their rights and obligations relating to the common ownership. In essence, Mansour was an investor only, providing the cash at closing; each party was responsible for its share of the seller’s notes when they became due; and I-85 was to market the property. In that capacity the agreement provided that I-85

Page 837

was to “be responsible for the aggressive and professional marketing efforts of the Property and shall be responsible for the orderly performance by independent contractors, supervision, and completion of any necessary work for enhancement of the property without cost to [Mansour] who is an investor only.” I-85 also agreed to “do what is necessary to preserve the investor status of [Mansour].”

By the following provision, the agreement prohibited transfer of a tenant’s interest:

Except [as otherwise provided] no tenant may sell, transfer, assign, or otherwise dispose of, mortgage, hypothecate, or otherwise encumber or permit or suffer any encumbrance of, all or any part of the interest of any such tenant in the property, unless approved in writing by all the tenants, and any attempt to so transfer or encumber the property shall be void.

The exceptions noted above allowed a tenant to transfer its interest to any other person or entity after (a) that tenant has fully paid its total obligation of the purchase price; (2) the selling tenant has delivered to the non-selling tenant written certification showing the name of the prospective transferee, and the negotiated price; and (3) the selling tenant has offered the non-selling tenant the opportunity to purchase. The contract further provided that a transferee will assume “the rights, duties, and obligations” of the transferor.

In 2000, without first offering to sell its interest in the property to Mansour in accordance with the right of the first refusal provision of the agreement, I-85 filed the present application for statutory partition of the remaining tenancy in common. [1] The complaint alleged that the agreement between the parties made no provision as to how the property should be divided, and that a fair and equitable division of the property could not be made by metes and bounds; a hearing was sought to determine whether physical division is equitable under the provisions of OCGA § 44-6-166.1. The trial court granted a writ of partition, and after a hearing, determined that a division by metes [277 Ga. 634] and bounds will depreciate the value of the property as a whole. In accordance with OCGA § 44-6-166.1(c), three appraisers were appointed, and an average appraised price of $12,202,666.67 was established. The court then issued a final order pursuant to OCGA § 44-6-166.1(e)(1), requiring Mansour to tender into the court its share of the appraised price, or the property would be subject to public sale under the provisions of OCGA § 44-6-167. This appeal followed.

1. Mansour asserts that the parties waived the right to partition by virtue of the language of the tenancy-in-common agreement.

One who holds land as a tenant in common has a statutory right to seek a writ of partition where no provision is made as to how the lands shall be divided. OCGA § 44-6-160; Paris v. Clay, 223 Ga. 738(1), 158 S.E.2d 377 (1967). However, “[i]t is generally held that a party will not be decreed partition if it would be contrary to his own agreement,” Bowers v. Bowers, 208 Ga. 85, 87(1), 65 S.E.2d 153 (1951), citing Rhodes v. Lane, 202 Ga. 608(2), 44 S.E.2d 114 (1947).

“[A]n agreement not to partition may be implied, as well as express…. [A]n agreement giving cotenants rights of first refusal implies an agreement not to bring a partition action in lieu of a sale to the cotenants.” 59A AmJur2d, Partition § 52. This Court followed that precept in Rhodes, supra at 609, 44 S.E.2d 114, where the language of a contract prohibited either party from selling or otherwise disposing of his undivided half-interest in real property without first giving the other party the opportunity to purchase that interest at a price not in excess of the original investment. The Court construed the right of first refusal language of the contract to prevent partition unless the party opposing partition be given the opportunity to purchase the interest under the express terms of the contract.

In other circumstances, our appellate courts have refused to partition a tenancy in common where partition impliedly contravened

Page 838

a written agreement between the parties. In Bowers, supra, a divorce agreement prohibited former husband from transferring his one-half undivided interest in real property without first offering it to his former wife at a sum not to exceed $3,500. In contravention of the agreement, he transferred his interest to his current wife in order that she bring an action for partition. The Court held that the current wife took, not as a bona fide purchaser, but with notice of whatever equities her husband had in the property, and that she was bound by his express agreement. The Court determined that the partition action could not defeat the clear terms of the divorce agreement, and by filing the petition for partition, current wife elected to sell her interest upon payment by former wife of $3,500. Likewise, in Rathkamp v. Rathkamp, 136 Ga.App. 423, 221 S.E.2d 221 (1975), a settlement agreement incorporated into a final [277 Ga. 635] judgment of divorce awarded real property to the parties as tenants in common, and allowed wife to occupy the property until she made the election to sell or remarry. Husband then attempted to defeat the agreement by bringing an action for partition, but the court upheld dismissal of that action, holding that “husband’s undivided interest in the property is … burdened with the alimony settlement agreement.” Id. at 424, 221 S.E.2d 221. See also Trimble v. Fairbanks, 209 Ga. 741(2), 76 S.E.2d 16 (1953) (where will provided that a property devised as a tenancy in common could only be sold by the joint acts of both parties, there was no right to seek partition). Compare Ricketson v. Metts, 173 Ga.App. 606, 327 S.E.2d 570 (1985) (where a settlement agreement divides the property of the marriage and there is no language which compels the conclusion that the parties intended to burden property, partition was proper.)

The agreement in issue here required I-85 to offer Mansour a right of first refusal before disposing of or otherwise encumbering its interest, which I-85 failed to do. In addition to completing its financial commitment under the agreement, I-85 was contractually bound to put forth “aggressive and professional marketing efforts,” to “protect the investor status of Mansour.” And the contract further provided that any transferee would assume “the rights, duties, and obligations” of the transferor. This would not occur if the property were to become subject to public sale under OCGA § 44-6-167. Under the circumstances, I-85 could not seek partition because such an action is in direct contravention of the agreement.

2. Mansour submits that I-85 as the petitioning party in the partition action may not seek to invoke the buy-out procedures of OCGA § 44-6-166.1. See OCGA §§ 44-6-166.1(a) and (b); Stone v. Benton, 258 Ga. 539, 371 S.E.2d 864 (1988). Because we have held that the agreement between the parties constituted an implied waiver of the right of partition, we do not address that question and express no opinion as to its resolution. Nor need we consider any other remaining enumerations of error.

Judgment reversed.

All the Justices concur.

———

Notes:

[1] Initially, the property consisted of 158 acres, but prior to the partitioning action, several parcels had been sold, and 110 acres remained.

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& & &

582 S.E.2d 180 (Ga.App. 2003)

261 Ga.App. 209

CAUDELL

v.

TOCCOA INN, INC.

No. A03A0857.

Court of Appeals of Georgia

May 9, 2003.

[261 Ga.App. 213] Alton M. Adams, Toccoa, for appellant.

Page 181

McClure, Ramsay, Dickerson & Escoe, Allan R. Ramsay, for appellee.

[261 Ga.App. 209] JOHNSON, Presiding Judge.

Roger Caudell appeals from the trial court’s order denying his protest concerning the court-ordered public sale of a sign. Caudell also appeals the earlier award of attorney fees in favor of Toccoa Inn, Inc. We find no error and affirm the trial court’s judgments.

The record reveals the following undisputed facts. Toccoa Inn and Caudell as tenants in common owned a “high-rise” sign located on real property owned by Caudell. Caudell filed a partition action, seeking a public sale of the sign. Ultimately, the trial court granted Caudell’s request for an equitable partition and ordered the public sale.

The trial court requested Caudell to prepare an order appointing three commissioners to conduct the sale of the sign and instructing the commissioners “as to what they are to do and when it must be done.” It is undisputed that Caudell prepared an order subsequently signed by the trial judge. This order stated “that the sale shall take place on the first Tuesday of February, 2001, commencing at 9:00 a.m. EST, or as soon thereafter as is practical, at the place of conducting public sales in Stephens County, Georgia.” Thereafter, pursuant to the court’s order, the commissioners prepared a notice which was placed in The Toccoa Record and advertised the sale once a week for four weeks. This advertisement also provided the sale would be at 9:00 a.m.

Toccoa Inn subsequently purchased the sign at the public sale for $1. The next day, Caudell filed a protest of the sale on the basis that it was not conducted at the proper time and place. The trial court denied Caudell’s protest and entered a final judgment disposing of the sale proceeds.

1. Caudell contends the trial court erred in denying his motion to set aside the public sale because the sale of the property at 9:00 a.m. contravenes OCGA § 9-13-160(b), which provides for public sales to be held between the hours of 10:00 a.m. and 4:00 p.m. EST. He further contends that the sale of the property at the Stephens County Government Building instead of the Stephens County Courthouse contravenes OCGA § 9-13-161, which provides that public sales must be conducted at the courthouse of the county. We find no merit to either contention.

It is axiomatic that a party must be held bound by a ruling which [261 Ga.App. 210] he invoked. [1] “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” [2] Here, there is no dispute that the commissioners conducted the sale at the time provided for in the order produced, proffered, and procured by Caudell.

Regarding the time of the sale, Caudell’s only argument is that his attorney committed a scrivener’s error in requesting the court to order a sale commencing at 9:00 a.m. EST rather than 10:00 a.m. EST. According to Caudell, although the error of the court and the error of the commissioners appointed by the court were induced by the scrivener’s error made by Caudell’s counsel, nonetheless Caudell and his counsel assumed the public sale would be conducted at 10:00 a.m. and did not appear for the sale until 9:45 a.m. By that time, the property had already been sold to Toccoa Inn. However, Caudell is not entitled to have the sale set aside because of unilateral mistake. Equity requires that there be fraud or inequitable conduct on the part of the other party in order to set aside the sale for unilateral mistake. [3] Here, there is no evidence of fraud or inequitable conduct on the part of Toccoa Inn.

Although the time of the sale was contrary to OCGA § 9-13-160(b), which mandates that public sales take place between 10:00 a.m. and 4:00 p.m. EST, this error was harmless to Caudell under the circumstances. Caudell prepared the order, specifically directing

Page 182

the sale to take place at 9:00 a.m. He clearly had knowledge that the sale was to take place at 9:00 a.m. and explicitly agreed to this time for the sale. We find no reversible error.

We further find no reversible error regarding the place where the sale was conducted. The judicial order produced and procured by Caudell indicated that the sale was to take place “at the place of conducting public sales in Stephens County, Georgia.” The legal notice published in the paper provided that the sale was to take place “before the courthouse door of the Stephens County Government Building.” Caudell alleges that the sale did not take place at the Stephens County Courthouse. He also argues that the legal advertisement was misleading because it referred to both the Stephens County Courthouse and the Stephens County Government Building. The trial court found that the sale took place as provided in the judicial order and in the legal notice. We agree.

[261 Ga.App. 211] As the trial court noted in its order,

[t]he fact that the commissioners of Stephens County chose to name the building housing the clerk, the courtrooms, and the judges’ chambers the “Stephens County Government Building” has no bearing, as that building is the only one in which the Superior Court of Stephens County currently convenes.

Thus, while the sale might not have taken place at the building entitled the Stephens County Courthouse (which was not being used for anything at the time), the sale certainly did take place at the courthouse of Stephens County. And, contrary to Caudell’s contention, the legal notice specified that the sale was to occur before the courthouse door of the building entitled the Stephens County Government Building. The trial court properly denied Caudell’s protest and motion to set aside the public sale.

2. Caudell contends the trial court erred in granting attorney fees to Toccoa Inn. We find no error.

OCGA § 44-6-166.1 provides the method for partitioning property that cannot be physically divided. Both Caudell and Toccoa Inn agreed that the sign in the present case could not be physically divided. Thus, the provisions set forth in OCGA § 44-6-166.1 applied.

Under OCGA § 44-6-166.1, the first step in partitioning such property is for the court to appoint three appraisers to appraise the property. The three appraisals are then averaged to constitute the appraised price. Notice of the appraised price is then served upon the petitioner and all parties in interest. [4] Then, within 15 days after the appraised price is established and upon approval of the court, any petitioner may withdraw and become a party in interest and any party in interest may withdraw and become a petitioner. Any petitioner remaining shall be paid his respective share of the appraised price based on his interest in the property. If no petitioner remains in the partitioning action after the fifteenth day, then the partitioning action shall be dismissed. [5]

If the partitioning action is not dismissed, the parties in interest must tender to the court the amount necessary to pay the petitioner his share of the average of the appraised price based on the petitioner’s interest in the property. If the parties in interest fail to tender the amount before 90 days after the appraised price is established, then the property shall be subject to public sale pursuant to OCGA § 44-6-167. [6]

The record in the present case shows that Caudell filed a petition for statutory partitioning of the sign in January 1999. Caudell attempted to bypass the mandatory provisions of OCGA § 44-6-166.1 by requesting the court to order a public sale of the sign. The court denied Caudell’s request and ordered the parties to select a panel of three appraisers to appraise the sign pursuant to OCGA § 44-6-166.1. Caudell “did not desire to accept the average of the three appraisals” and requested to withdraw as a petitioner. The court granted Caudell’s request. Since

Page 183

the action had no petitioner, it was dismissed pursuant to OCGA § 44-6-166.1(d).

Subsequently, Caudell filed another petition for public sale in December 1999. Again, Caudell sought to bypass the mandatory provisions of OCGA § 44-6-166.1 by requesting the court to order a public sale of the sign, the same position which the court had rejected previously. The court rejected Caudell’s request and ordered that the mandatory provisions of OCGA § 44-6-166.1 be followed. In addition, the court granted Toccoa Inn’s request for attorney fees, finding that by asking the court to circumvent OCGA § 44-6-166.1, Caudell asserted a claim “with respect to which there exist[s] such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim,” and that the claim “lack[s] substantial justification.” [7]

In support of his claim that he was attempting to establish a new theory of law, Caudell argues that there has been no direction regarding the interrelationship between OCGA §§ 44-6-166.1 and 44-6-167. According to Caudell, OCGA § 44-6-167 permits the court to order a public sale of property if the property sought to be partitioned is not sold pursuant to OCGA § 44-6-166.1. However, the legislature’s intent is quite clear. Under OCGA § 44-6-166.1, a public sale of property is only ordered by the court if the party in interest fails to tender to the court an amount necessary to “buy out” the petitioner before 90 days after the appraised price has been established. [8] If the partitioning action is dismissed for lack of a petitioner, then the provisions of OCGA § 44-6-166.1(e)(1) never apply. Caudell was not entitled to a public sale of the sign under OCGA § 44-6-167 simply because the property was not sold pursuant to OCGA § 44-6-166.1 in the first partitioning action. Giving effect to this argument would completely circumvent OCGA § 44-6-166.1 and leave it without effect.

Caudell’s reliance on Stone v. Benton [9] is misplaced. The Stone case specifically notes that a petitioner may pursue the remedy of a public sale under OCGA § 44-6-167(1) only if the party in interest does not pay into the court the petitioner’s portion of the appraised price as required by OCGA § 44-6-166.1 or (2) by convincing the court that a fair and equitable division of the property cannot be made for a number of reasons. [10]

Here, instead of filing another type of action or filing a direct action under OCGA § 44-6-167 and arguing that a fair and equitable division of the property could not be made under OCGA § 44-6-166.1, Caudell simply refiled the partitioning action under OCGA § 44-6-166.1 and asserted the very same claims that had been scrutinized and rejected by the trial court in the first petitioning action. Since the trial court had not accepted Caudell’s position in the first action, it could not be reasonably believed that the court would accept the same claim in the second partitioning action. The trial court only ordered a public sale of the sign pursuant to OCGA § 44-6-167 after Caudell amended his complaint to ask for an equitable partitioning. And, the court’s award of attorney fees only included the expenses incurred in responding to Caudell’s same claim a second time. The trial court did not err in awarding attorney fees to Toccoa Inn under the circumstances of this case.

Judgment affirmed.

ELDRIDGE and MIKELL, JJ., concur.

———

Notes:

[1] City of Centerville v. City of Warner Robins, 270 Ga. 183, 185(2), 508 S.E.2d 161 (1998).

[2] (Citation and punctuation omitted.) Maree v. Phillips, 272 Ga. 52, 54(1), 525 S.E.2d 94 (2000).

[3] See Layfield v. Sanford, 247 Ga. 92, 93-94, 274 S.E.2d 450 (1981).

[4] OCGA § 44-6-166.1(c).

[5] OCGA § 44-6-166.1(d).

[6] OCGA § 44-6-166.1(e).

[7] OCGA § 9-15-14(a), (b).

[8] OCGA § 44-6-166.1(e)(1).

[9] 258 Ga. 539, 371 S.E.2d 864 (1988).

[10] Id. at 539-540, 371 S.E.2d 864.

———

544 S.E.2d 425 (Ga. 2001)

273 Ga. 549

CHEEVES,

v.

LACKSEN et al.

S00A1717.

In the Supreme Court of Georgia

March 19, 2001

Page 426

[273 Ga. 549] BENHAM, Chief Justice.

Appellees Jeffrey, Mary and John Lacksen filed a complaint in which they sought the partition of real property, 53 acres of unimproved timberland in Hancock County. Appellant Henry Cheeves, through his guardian, filed an answer and counterclaim in which he asserted that any inquiry into a partitioning would be premature, alleging that appellees had no lawful ownership interest in the property because their interest had been obtained by fraud. The trial court ruled that partitioning should occur and appointed three persons to make appraisals and report their findings. See OCGA § 44-6-166.1. This appeal followed.

In 1993, Robert Trawick sold appellees what was purported to be a 100% interest in the property for $27,000. Trawick also executed an affidavit naming himself as the sole heir-at-law of the last record owner. Subsequently, appellees discovered they had not obtained a hundred percent interest in the property and attempted to purchase the remaining interests held by a number of individuals. Appellees filed the partition action after buying tracts from all the willing sellers.

After a hearing, the trial court determined appellees owned an undivided 93.66% interest in the real property at issue and [273 Ga. 550] that appellant owned a 5.555% undivided interest. [1] In April 1999, the trial court issued an order in which it found that an equitable division by metes and bounds was impossible; that a proceeding in equity for partition was more suitable and just than a proceeding to partition at law; that the defendants were not entitled to a jury trial; and that partitioning should proceed in accordance with OCGA § 44-6-166.1. On appeal, appellant argues the trial court erred in granting appellees a remedy at law under OCGA § 44-6-166.1; in allowing appellees to proceed in equity; and in denying appellant the jury trial to which he claimed entitlement pursuant to OCGA § 44-6-165.

1. OCGA §44-6-166.1 provides that its procedures must be followed “[w]henever 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 …the value of the entire property will be depreciated by the partition applied for….” The trial court found that “because of the fact that this property consists of 53 acres of timberland with no road frontage and because of the varying percentage interests of the parties hereto an equitable division by metes and bounds is impossible.” See OCGA § 44-6-166.1. The trial court’s finding reflects

Page 427

that the land was most suitable for timberland and that it would be unfeasible for a timber company to buy the smaller tracts for timber, some being as small as 0.086805% of the 53 acre tract, with the result that the smaller tracts would be virtually worthless. This finding supports the trial court’s ruling that OCGA § 44-6-166.1 applies because it demonstrates that the value of the land as a whole would be diminished. See Royston v. Royston, 13 Ga. 425 (1853).

2. Appellant argues that the trial court erred in allowing appellees to proceed in equity while at the same time granting them a remedy at law under OCGA § 44-6-166.1. We agree with appellant that the trial court’s conclusions of law were internally inconsistent. On the one hand, the trial court concluded that “[a] proceeding in equity for partition is more suitable and just than a proceeding to partition at law,” which is the standard established by OCGA § 44-6-140 for determining whether a partitioning should proceed in equity. On the other hand, the trial court concluded that the property should [273 Ga. 551] be partitioned pursuant to OCGA § 44-6-166.1, a statutory remedy which is part of a partitioning at law.

The trial court did not specifically find that a remedy at law was inadequate or that peculiar circumstances existed that made proceeding in equity more appropriate. Our own review of the record does not persuade us that a remedy at law was inadequate or that there were peculiar circumstances that made proceeding in equity more appropriate. Compare Larimer v. Larimer, 249 Ga. 500 (292 S.E.2d 71) (1982). It appears, therefore, that the conclusion that a proceeding in equity was appropriate was in error. However, despite that erroneous ruling, the trial court actually applied a legal remedy. Therefore, under the “right for any reason” rule, we must affirm the ruling of the trial court since it was correct in granting a remedy at law. Little v. City of Lawrenceville, 272 Ga. 340 (2) (528 S.E.2d 515) (2000).

3. Finally, appellant contends the trial court erroneously denied him his statutory right to a jury trial. OCGA § 44-6-165 provides that “any of the persons against whose right or title a judgment is sought…may, by way of defense, show…that the petitioner does not have title…to any part of the land” in order to obtain a jury trial. Appellant has not made such a showing by asserting that appellees obtained their title by defrauding third parties. “A defendant co-tenant cannot defeat partition on the ground that the co-tenant seeking partition acquired his interest illegally from a third person who is not a party to the case.” Gaulden et al. v. Mills, 240 Ga. 4 (239 S.E.2d 353) (1977); Sewell v. Holland, 61 Ga. 608 (3) (1878). At a minimum, a defendant cotenant must show as a matter of record that the interests claimed by the parties exceed 100% (see Clay v. Clay, 268 Ga. 40 (485 S.E.2d 205) (1997); Douglas v. Johnson, 130 Ga. 472 (60 SE 1041) (1908); Sewell, supra) or that as a matter of record the interests claimed by the parties do not equal 100%. See Hill v. McCandless, 198 Ga. 737 (32 S.E.2d 774) (1945). Because appellant did not make the showing required by statute, the trial court was correct in concluding he was not entitled to a jury trial.

For the reasons stated above, we affirm the ruling of the trial court.

Judgment affirmed.

All the Justices concur, except Thompson, J., not participating.

———

Notes:

[1] . Six other persons who were defendants in the trial court and who have not pursued an appeal were found to own the remaining undivided interests.

———

& & &

525 S.E.2d 94 (Ga. 2000)

272 Ga. 52

MAREE,

v.

PHILLIPS

S99A1570.

In the Supreme Court of Georgia

January 18, 2000

Page 95

[272 Ga. 52] BENHAM, Chief Justice.

This appeal follows the entry of final judgment in a case in which, pursuant to OCGA §§ 44-6-166.1 and 44-6-167 and the petitions of the parties, the trial court ordered the sale of certain real property owned by the parties as joint tenants with right of survivorship, and the division of the proceeds according to the parties’ Cohabitation Agreement (“the Agreement”), as construed by the trial court.

Shortly after they met in 1987, appellant Maree and appellee Phillips began living together. In September 1988, with appellant Maree providing 98% of the down payment and closing costs and appellee Phillips providing 2%, the parties purchased the Dekalb County home which is the real property at the [272 Ga. 53] center of the current controversy. [1] The parties stipulated that thereafter each party contributed equally to payment of the monthly mortgage installment. In February 1990, the parties executed the Agreement which, among other things, provided for an equal division of the payment of household expenses and guidelines for the division of the parties’ property upon the dissolution of their cohabitation. [2] The parties continued to live together until 1997, when appellee Phillips moved out and filed a complaint seeking an order of partition and division of the sale proceeds pursuant to the Agreement. In a verified answer and counterclaim, appellant Maree agreed that the property should be sold and the proceeds divided pursuant to the parties’ Agreement. In November 1998, after appellant Maree filed a motion for sale of the property pursuant to OCGA § 44-6-166.1 and for distribution of the proceeds, the trial court issued an order for sale of the property. Left for resolution at trial were each party’s claim that the other had breached

Page 96

the Agreement, and the division of the sale proceeds pursuant to the Agreement.

After a three-day bench trial, the trial court concluded that neither party had proven that the other had breached the Agreement. The trial court then turned its attention to the division of the sale proceeds pursuant to the Agreement and concluded that the real property was property acquired during the parties’ cohabitation with moneys provided by both parties. Under the terms of the Agreement, such property was owned by each party “to the extent of his contribution” and the proceeds therefrom were to be divided accordingly. Finding the quoted phrase ambiguous because it was not clear whether it referred only to monetary contributions used to acquire the property or included money and labor expended to improve the property, the trial court used applicable rules of construction and concluded that “extent of his contribution” referred only to monies paid to acquire the property. Since the parties had agreed that their unequal contributions at the closing of the purchase of the house were to be treated as loans and had made equal payments on the mortgage, the trial court concluded the parties owned the property equally and ruled that the equity remaining after the mortgage was satisfied and each party was reimbursed for that party’s “closing loan” was to be divided equally between the two. The trial court [272 Ga. 54] denied appellant Maree’s motion for new trial or modification of the final judgment, and this appeal followed.

1. In the verified answer to appellee’s complaint, appellant agreed that the property should be sold and the proceeds divided pursuant to the Agreement. Therefore, appellant may not on appeal complain that the trial court erred in dividing the proceeds pursuant to the terms of the Agreement. Similarly, since appellant asked the trial court to order a public sale and partition pursuant to OCGA §§ 44-6-166.1 and 167, we will not consider whether the trial court erred in doing as appellant asked. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” Rush v. Southern Prop. Mgmt., 121 Ga.App. 360 (2a) (173 SE2d 744) (1970).

2. Appellant asserts as error the trial court’s failure to take into account when partitioning the proceeds from the sale of the home, appellant’s expenditures toward the upkeep, improvement, and repair of the property. While courts of equity have taken such expenditures into consideration when acting upon petitions seeking equitable partitioning of real property owned by parties who do not have a separate agreement concerning the distribution of the property (see Taylor v. Sharpe, 221 Ga. 282 (144 SE2d 390) (1965); Borum v. Deese, 196 Ga. 292 (26 SE2d 538) (1943)), the trial court in the case at bar was not faced with an equitable partitioning, but with dividing the proceeds pursuant to the Agreement which both parties said governed the distribution of the property. The Agreement stated that property would be divided to the extent of each party’s contribution and, in its order, the trial court stated that the expenditures for which appellant now wants credit did not constitute a “contribution” as that term was used in the parties’ Agreement. Accordingly, the trial court did not err in not considering the costs of upkeep, improvements, and repair of the property when dividing the proceeds of the sale of the property.

3. Appellant contends that an accounting was required in light of the Agreement’s requirement that the parties split equally the payments of the “mortgage, taxes, insurance, maintenance, food, utilities, and household provisions needed for and during the cohabitation[,]” and testimony that appellant spent more money on landscaping improvements and repairs. As has been previously stated, the trial court construed the Agreement as calling for each party to receive a share of the proceeds to the extent of that party’s contribution to the acquisition of the property, not the improvement, landscaping, or repairing of the property. Again, the fact that appellant expended more money on the property does not mean that appellant contributed more to the acquisition of the property.

Page 97

4. Appellant asserts that the trial court misread or misconstrued [272 Ga. 55] the Agreement when it found that the parties’ contributions to the closing costs on the home were to be treated as loans. The trial court’s finding was not based on a construction of the Agreement, but on the testimony of each party that they both intended the funds to be treated as loans. Since the trial court’s finding was supported by the evidence, it was not error. See Miller v. Clayton County, 271 Ga. 135 (4) (518 SE2d 403) (1999).

5. Appellant takes issue with the trial court’s holding that an ambiguity in the Agreement would be construed against appellant as the person who selected the form the parties used in drafting the Agreement. Even if the trial court erred as appellant claims, a finding of harm is pretermitted by the fact that the trial court’s holding was but one of several theories used to reach its conclusion.

6. Lastly, appellant claims the trial court violated appellant’s constitutional rights in ruling as it did. Inasmuch as the trial court never ruled on these constitutional challenges because they were never raised in the trial court, we decline to do so now. See Bohannon v. State, 269 Ga. 130 (4) (497 SE2d 552) (1998).

Judgment affirmed.

All the Justices concur.

———

Notes:

[1] . The parties agreed that all monies paid at closing were to be treated as loans to be paid back after the property was sold.

[2] . Control, title to, or interest in property acquired before cohabitation remained with that party. As for property acquired during cohabitation, the Agreement provided that control and title to any property, real or personal, acquired during cohabitation will be maintained solely by the party whose moneys paid for the acquisition or to whom it was given by legacy or operation of law. If both parties paid for the property, each will own it to the extent of his contribution.

———

& & &

& & &

 

[2] Equitable Partition Cases

 

Ransom

v.

Holman et al.

S04A1857

Supreme Court of Georgia

February 7, 2005

SEARS, Presiding Justice.

Appellant Rayfield Ransom appeals the trial court’s decision to order an equitable partitioning of property owned by appellant and appellee Matthew Holman as tenants-in common. Having reviewed the record and finding no error in the trial court’s rulings, we affirm.

Appellant filed a statutory partitioning proceeding, naming appellee and his grandfather, Grady Holman, as defendants. Appellant asserted that he owns a two-fifths interest in the subject property, and that appellee owns a three-fifths interest. Appellee responded, asserting that he owns a four-fifths interest in the property, while appellant owns only a one-fifth interest. Appellee also filed a counterclaim seeking an equitable division, an accounting and contribution, asserting that since 1980, he alone has paid all taxes and maintenance costs relative to the property. Finally, appellee argued that since Grady Holman owns no interest in the property, he was not a proper party and should be dismissed.

Following a hearing, the trial court found that dividing the property into fractional parts would decrease the value of each part and the whole. The court also found that an accounting was necessary in order to settle the parties’ claims. Therefore, the court ordered an equitable partitioning and appointed a receiver to take charge of the property, sell it and provide an accounting, with the proceeds being divided upon court approval. The court reserved ruling on the parties’ dispute concerning their respective interests in the property until entry of the final decree. The court also granted appellee’s motion to dismiss Grady Holman from the case.

1. “Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding more equitable and just.”[1] The need for an accounting between tenants-in-common will, standing alone, bestow jurisdiction upon a court of equity to decide a partitioning action, even if no other peculiar circumstances exist that warrant an equitable proceeding.[2] This particular case involves a claim for an accounting that, by itself, warrants the exercise of equitable jurisdiction, as well as a finding by the trial court that the property is configured such that its physical division will create a decreased value. Accordingly, this case involves the sort of circumstances that justify the assumption of equitable jurisdiction over a partitioning action, and the trial court did not abuse its discretion in so ordering.

2. The trial court did not, as appellant claims, err by failing to address his claim that one or more of the appellee’s deeds are invalid.[3] That allegation concerns the parties’ respective interests in the property, a disputed issue specifically reserved by the trial court for later determination.

3. The trial court did not err by dismissing Grady Holman from the action, as it is indisputable that he holds no interest in the property to be partitioned.

Judgment affirmed. All the Justices concur.

—————

Notes

[1] OCGA § 44-6-140.

[2] Coker Properties., L.P. v. Brooks, No. S04A0998 (Ga. 10/25/04); Mills v. Williams, 208 Ga. 425 (67 SE2d 212) (1951).

[3] Appellant raised this issue in an amended complaint filed after appellee brought his counterclaim.

—————

 

 

& & &

 

604 S.E.2d 766 (Ga. 2004)

278 Ga. 638

COKER PROPERTIES, L.P.

v.

BROOKS et al.

Coker et al.

v.

Brooks et al.

Nos. S04A0997, S04A0998.

Supreme Court of Georgia.

October 25, 2004

Reconsideration Denied Nov. 26, 2004.

G. Robert Oliver, Margaret M. Youngblood, Oliver & Winkle, P.C., Jonesboro, W. Howard Fowler, Lawrenceville, for Appellant.

Page 767

Rex P. Cornelison, III, Atlanta, for Appellee.

[278 Ga. 638] BENHAM, Justice.

These appeals are from orders entered in a statutory partitioning proceeding initiated in December 1999 by Sharon Brooks, individually and as administratrix of the estate of Roy Dean Hale and as executor of the estate of Winifred Hale (her parents), and her siblings (collectively, “Brooks”). The partitioning sought to divide 50.77 acres of property in Gwinnett County that would remain after a pending school condemnation proceeding took approximately seven acres of [278 Ga. 639] the remnant of the property purchased in 1949 by Roy Dean Hale and Jess Coker (Winifred Hale’s brother). The partitioning action was stayed in April 2000 on the motion of Coker Properties (successor to Jess Coker’s interest) which contended Brooks were entitled to only a 25% interest in the land sought to be partitioned and urged that the respective rights of the parties be determined prior to partitioning. The partitioning action was reinstated in May 2003 following the filing of the Court of Appeals’s remittitur in the condemnation case. In the condemnation case, it was determined that Coker Properties owned 75% of the property and Brooks owned 25% of the seven-acre parcel being condemned.

In opposition to Brooks’s motion to lift the stay in the statutory partitioning, Coker Properties contended the land ownership issue had been decided in the condemnation proceeding and asked the court to re-confirm that finding in this case. Coker Properties also moved for an equitable accounting, alleging that Brooks had never paid taxes or maintenance expenses on the property, and sought equitable contribution from Brooks for the monies expended by Coker Properties and for a lien on the property. Coker Properties asked the trial court to exercise its equity jurisdiction and treat the partition proceeding as an equitable partitioning under OCGA § 44-6-140 et seq. due to the circumstances of the case. The trial court denied Coker Properties’ motion and issued a certificate of immediate review.

In December 2002, Jess and Mary Virginia Coker filed a motion to intervene in the partitioning action based on the fact that Jess was the predecessor in interest of Coker Properties and both Jess and Mary Virginia claimed a right of reimbursement/contribution for 25% of the expenses Jess incurred in paying taxes and insurance and making repairs and maintaining the property when he owned the property with Roy Dean and Winifred Hale from 1949 to 1991. The trial court denied the motion to intervene and issued a certificate of immediate review. We granted the subsequent applications for interlocutory review, posing the following questions:

Did the trial court err when it declined to exercise equitable jurisdiction in the partitioning proceeding?

Did Jess Coker’s right of contribution survive his 1991 quitclaim deed to Coker Properties? If so, did the trial court err when it denied Jess Coker’s motion to intervene?

1. In Case No. S04A0997, Coker Property enumerates as error the trial court’s refusal to convert the statutory partitioning case into an equitable partition case. “Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar [278 Ga. 640] circumstances render the proceeding in equity more suitable and just.” OCGA § 44-6-140. One circumstance which warrants equitable partitioning is a claim for accounting between co-tenants. Taylor v. Sharpe, 221 Ga. 282(1), 144 S.E.2d 390 (1965); Mills v. Williams, 208 Ga. 425(1), 67 S.E.2d 212 (1951) (“[A]ccounting 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.”) This case presents, in addition to a claim for an accounting which would itself warrant the exercise of equitable jurisdiction, a claim for contribution, an assertion of estoppel, and the complicating factors arising from the lack of a written agreement contemporaneous with the purchase regarding the extent of ownership of the original co-tenants, the division of the property by the construction of a highway through it, the sale

Page 768

of a portion of the property 20 years ago, the condemnation of a portion of the remaining property, and the death of one of the original co-tenants. Given the extent of the complications here, this case presents the “peculiar circumstances” which render a proceeding in equity more suitable and just. Accordingly, we conclude the trial court erred in refusing to convert the statutory partitioning action to an equitable partitioning action, and reverse that judgment.

2. In Case No. S04A0998, Jess [1] and Mary Virginia Coker brought the appeal from the denial of their motion to intervene in the partitioning action based on a claimed right of contribution from Brooks arising from Jess Coker’s payment of taxes and maintenance costs prior to his transfer of the property to Coker Properties in 1991. The question of intervention is controlled by OCGA § 9-11-24. In subsection (a) of the statute, intervention of right exists when a statute confers an unconditional right to intervene, which is not the case here, or when “the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest….” While the Cokers claim an interest relating to the property, we agree with the trial court’s implicit holding that the disposition of the partitioning case in which they seek to intervene will not impede their ability to protect that interest. If, as the Cokers assert, their claim against Brooks for contribution is separate from [278 Ga. 641] the ownership interest in the property, the partitioning of the property according to the ownership interest of the present co-tenants will not adversely affect the claim for contribution. Thus, the Cokers have not shown a right to intervene.

Permissive intervention is provided for by subsection (b) of OCGA § 9-11-24, when a statute confers a conditional right to intervene, not a factor here, or when “an applicant’s claim … and the main action have a question of law or fact in common.” Id. While the Cokers’ claim for contribution shares some questions of fact with the issues in the partitioning action, that commonality does not confer a right to intervene. “Whether permissive intervention should be granted is a question addressed to the sound discretion of the trial court. [Cits.] We will not reverse a grant or denial of permissive intervention unless there is an abuse of discretion.” Allgood v. Georgia Marble Co., 239 Ga. 858, 859, 239 S.E.2d 31 (1977). Since the Cokers have divested themselves of any property interest being decided in the partitioning action, we see no abuse of the trial court’s discretion in denying intervention by the Cokers. Accordingly, the order denying intervention is affirmed. Since the Cokers will not be parties to the action below, we need not decide whether Jess Coker’s right of contribution survived his 1991 quitclaim deed to Coker Properties.

Judgment reversed in Case No. S04A0997; judgment affirmed in Case No. S04A0998.

All the Justices concur.

———

Notes:

[1] Brooks’s motion to dismiss Case No. S04A0998 because of the death of Jess Coker is denied since Mary Virginia Coker remains as a party to the appeal, individually and as executrix of Jess Coker’s estate.

& & &

603 S.E.2d 255 (Ga. 2004)

278 Ga. 515

CHANEY et al.

v.

UPCHURCH.

No. S04A1246.

Supreme Court of Georgia.

September 27, 2004

Reconsideration Denied Oct. 25, 2004.

Jesse Lee Young, Stone Mountain, for Appellant.

Bradford C. Dodds, Funderburk, Day & Lane, Thomas Michael Jones, Meacham, Earley & Jones, P.C., Columbus, for Appellee.

[278 Ga. 515] THOMPSON, Justice.

This is an appeal from a judgment ordering the equitable partition of a 101.7 acre tract of land in Harris County, Georgia. The property has passed through inheritance, intestacy, and acquisition to Arnelia Chaney and other individual members of the Chaney family, appellants herein. In December 2000, approximately 20 members of the Chaney family owned individual undivided interests

Page 256

in the property as tenants in common. At about that time, appellee Harold Upchurch began buying interests from various Chaney family members. As of July 2003, approximately 14 members of the Chaney family still owned interests in the property, ranging from 15 percent to .15 percent; [1] and Upchurch had acquired 43 percent of the property as a tenant in common with them. The remaining Chaney family members refused to sell any more of their interests in the land.

Upchurch filed a complaint for partition in equity pursuant to OCGA § 44-6-140 et seq., seeking a public sale and division of the proceeds in proportion to the respective interests of the parties. The Chaneys counterclaimed for statutory partition, seeking to have the property divided by metes and bounds under the provisions of OCGA § 44-6-160 et seq.

A survey of the property was prepared. The surveyor testified at an evidentiary hearing that the property is zoned agricultural; the Harris County zoning ordinance requires that subdivisions in this zone contain lots at least five acres in size with a minimum of 50 feet of frontage on a public road; that a portion of the property is accessed by an unpaved road which does not qualify as a county road (the survey established that only approximately 450 feet fronts on a public road); and approximately 25 acres is included in a 100-year flood zone. The surveyor concluded that a plat dividing the property by metes and bounds in accordance with the percentages of ownership would not be approved by the county because it would result in substandard lots and inadequate road frontage. The Chaneys voiced no objection and offered no expert evidence to counter this testimony.

[278 Ga. 516] After finding that a division of the property would not adequately protect the interests of the owners of the smallest shares, would not satisfy the minimum standards of the Harris County zoning classification, and would result in lots without value, the trial court concluded that a remedy at law is insufficient and ordered equitable partition.

1. It is asserted that the trial court erred in ordering equitable, rather than statutory, partition.

While statutory partitioning “is the rule, and should be followed if it can be done without pecuniary damage,” Anderson v. Anderson, 27 Ga.App. 513, 515, 108 S.E. 907 (1921), a sale of the land may be ordered if the trial court finds “(1) that partition in kind cannot be conveniently made, and (2) that the interest of the parties owning the land will be promoted by a sale.” Id. Both prongs of that test were satisfied here. The Chaneys acknowledge that the parties could not agree on where the property line should be drawn and whether Upchurch was entitled to additional property to compensate him for the flood zone. The expert opined that it would be impossible to divide the property in a manner which would enable each cotenant to comply with the zoning requirements.

Under similar circumstances, the Court in Taylor v. Sharpe, 221 Ga. 282(1), 144 S.E.2d 390 (1965) determined that equitable partition was appropriate where “[t]here was a complexity of interests by the cotenants who were residents and nonresidents of the state.” In the case now before the Court, the trial court concluded that division in kind would result in fractional owners with devalued property. Under these peculiar circumstances, we agree that a remedy at law was inadequate and that the proceeding in equity was more just and equitable. See Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982); Anderson, supra at 515(3), 108 S.E. 907.

2. As OCGA § 44-6-166.1 is a “a statutory remedy which is part of a partitioning at law,” Cheeves v. Lacksen, 273 Ga. 549, 544 S.E.2d 425, 427(2) (2001), the trial court did not err in failing to follow its procedures. We note that the concept of equitable partitioning encompasses the need for flexibility in fashioning a remedy. See Taylor v. Sharpe, 221 Ga. 282, 284, 144 S.E.2d 390(1) (1965);

Page 257

Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943); Liddell v. Johnson, 213 Ga. 752(1), 101 S.E.2d 755 (1958).

Judgment affirmed.

All the Justices concur.

———

Notes:

[1] Some of the cotenants in the Chaney family are unknown because of repeated intestate succession.

———

& & &

577 S.E.2d 583 (Ga. 2003)

276 Ga. 404

REECE

v.

SMITH.

No. S02A1712.

Supreme Court of Georgia

February 24, 2003.

Reconsideration Denied March 28, 2003.

Page 584

[Copyrighted Material Omitted]

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[276 Ga. 408] Adam & Talley, James M. Adam, Gainesville, for appellant.

McClure, Ramsay, Dickerson & Escoe, Allan R. Ramsay, Toccoa, for appellee.

[276 Ga. 404] HINES, Justice.

George Reece appeals from rulings of the trial court: directing a verdict in favor of Smith on Reece’s claim that he owned all interests in a tract of land that Smith sought to have partitioned; entering judgment on the report of the partitioners; and awarding attorney fees. For the reasons that follow, we affirm.

In 1980, Tommy Chappell (“Chappell”) owned a 7/8 undivided interest in a certain tract of land (the “tract”), containing approximately 60 acres. The remaining 1/8 undivided interest was owned by Chappell’s cousins, the Pointers. In April 1980, Chappell conveyed his interest in certain 11.91 acres of the tract to Reece, and later conveyed his interest in another, unconnected portion of the tract to Reece (Reece’s “parcels”). In January 1981, Chappell conveyed his 7/8 undivided interest in the remainder of the tract to T.J. Chappell (“T.J.”), his minor son. Construing the evidence in support of non-movant Reece, Reece used the entire tract after his purchases, not merely his parcels. In 1984, Reece received a quitclaim deed from the Pointers for their 1/8 undivided interest in the tract; Reece then owned all interests in the parcels he acquired from Chappell, and a 1/8 interest [276 Ga. 405] in the remainder of the tract.

In 1998, Gary Smith approached Reece about buying the tract, or a portion thereof. However, Smith discovered that the county deed records showed that Reece owned only a 1/8 undivided interest in the tract. Smith then contacted Chappell about purchasing the 7/8 undivided interest from T.J. In November 1998, T.J. conveyed his interest in the tract back to his father. Chappell conveyed this undivided interest to Smith on April 22, 1999. Smith had previously secured complete title to 5.81 acres of the tract. [1] Thus, Smith and Reece each held complete title to separate parcels that had once been part of the larger tract. Additionally, Smith had record title to a 7/8 undivided interest in the remainder of the tract; Reece held the other 1/8 undivided interest.

In 1999, Smith sought a statutory partition of that portion of the tract in which he and Reece both held interests. See OCGA § 44-6-160 et seq. Reece counterclaimed, contending that he held all interests in the land that Smith sought to have partitioned by virtue of adverse possession and certain conveyances. [2] Reece’s counterclaim was tried before a jury, and the trial court granted Smith’s motion for directed verdict on all issues in the counterclaim. The court later entered judgment on the report of the partitioners.

1. Reece argues that a directed verdict should not have been granted on his claim that he acquired all interests in the disputed portion of the tract by adverse possession. Reece claims that he possessed the land for a period of seven years while holding written evidence of title to the entire tract, i.e. the 1984 quitclaim deed from the Pointers. See OCGA § 44-5-164. However, under OCGA §§ 44-5-164 and 44-5-170, the seven-year period of time does not run against the rights of a minor during his minority. During the period from the 1984 Pointers’ conveyance until T.J.’s eighteenth birthday in August 1994, the 7/8 interest in the property to which Reece did not hold title was held by a minor, and the seven-year period did not run. Nor did seven years pass between 1994 and the filing of the partition action. Although Reece contends that some actions of T.J. after he reached majority “ratified” Reece’s earlier possession, the simple fact is that under the statutes, no

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adverse possession claim can be based on the period of time in which T.J. was a minor. [3]

2. Reece also attempts to show that he had title to the tract by virtue of an oral contract and an unrecorded deed. Directed verdict on these issues was also proper. Reece contends that he and Chappell [276 Ga. 406] entered into an oral agreement for the sale of the tract from Chappell to Reece. This alleged agreement was purportedly made during the period of time that the land was held by T.J., and Reece argues that when Chappell acquired the land in 1998, equity operated so as to vest title in Reece, pursuant to the earlier agreement. See Dillard v. Brannan, 217 Ga. 179(2), 121 S.E.2d 768 (1961). This concept is known as estoppel by deed, which is codified in Georgia at OCGA § 44-5-44. Under this doctrine a grantor who conveys by warranty deed an interest that he does not then own, but later acquires, will be estopped to deny the validity of the first deed. It is generally understood, however, that this doctrine cannot be used to transfer title or to cure flaws in the legal requirements for the creation of a property interest. Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 697(2), 506 S.E.2d 116 (1998). First, no effective conveyance from Chappell to Reece is presented; all that is asserted is an oral agreement, which does not satisfy the statute of frauds. See OCGA § 13-5-30(4). Second, to the extent that any agreement between Chappell and Reece is enforceable, it is enforceable as to Chappell. Although Reece stated in his first pleading that he believes that Chappell is an indispensable party, Reece has never sought to join Chappell in the suit. See OCGA § 9-11-19.

Similarly, although Reece contends that he possessed a 1997 deed from T.J. conveying to Reece his interest in the tract, no such document was entered into evidence. [4] To the extent that the contents of the document were put before the jury, it is undisputed that the price stated in the document was “___ dollars” (i.e. a blank space followed by the word “dollars”). The document contains nothing that would furnish a key to determining the consideration for the land. Consequently, the document is not enforceable to transfer title, see Muller v. Cooper, 165 Ga. 439, 441-442, 141 S.E. 300 (1927), and does not serve as evidence that Reece had title to the tract beyond that which he acquired in the recorded deeds.

3. Reece contends that the trial court should not have entered [276 Ga. 407] judgment accepting the report of the partitioners as the partition was not a fair and equitable division of the property. [5] (a) Reece complains that the partitioners left a structure known as the “old homeplace” astride a boundary line between his property and Smith’s, and that the road he has used to access the first parcel of his property is now on Smith’s land and is closed to him. However, these conditions are not due to the partition, and the line drawn by the partitioners is in an entirely different portion of the tract than the “old homeplace” and the road in question. In fact, the “old homeplace” has been astride a boundary line since 1980, when Reece decided what piece of land to buy from Chappell. Also, the first parcel Reece acquired has access by an easement set forth in his 1980 deed. [6] Although Reece has used a different road for ingress

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and egress to his first parcel, that road is one in which he does not have any recorded right to traverse. [7] It is not the responsibility of the partitioners or the court to redraw the boundaries of the property Reece purchased to accommodate the choices he made concerning those boundaries, or to ratify the actions he took on land belonging to the Chappells in the years prior to the partition.

(b) Reece argues that the partition wrongly assumes that a strip of land lying between his first parcel and a piece of property outside the tract was part of the undivided tract; Reece contends that this strip should be considered his in toto. [8] The property outside the tract was formerly owned by Craft. Reece claims that a boundary line agreement signed by Craft, Reece, and Chappell shows that he owns this strip. However, at the trial on Reece’s counterclaim, Chappell denied signing the document and a handwriting expert testified that in his opinion Chappell’s signature had been forged. Further, Chappell’s alleged signature was at a time when T. J., not his father, owned the land. Although Reece procured a quitclaim deed from Craft to the strip of land between his parcel and the fence along the edge of Craft’s property, as the trial court noted, Craft averred that she never had any property interest in the land on the Chappell side of the fence, and her quitclaim deed conveyed no such interest. The boundaries of Reece’s parcel used to partition the tract were in accord with the description of the parcel in Reece’s 1980 deed and associated plat, and the trial court did not err in determining that the partition was fair and equitable.

4. Finally, Reece appeals the trial court’s award of attorney fees to Smith under OCGA § 9-15-14(a). This Court has jurisdiction over this award as the application for attorney fees was made within 45 days of the denial of the motion for new trial. See Fairburn Banking Co. v. Gafford, 263 Ga. 792, 439 S.E.2d 482 (1994); Stancil v. Gwinnett County, 259 Ga. 507, 508, 384 S.E.2d 666 (1989).

The trial court found that while Reece asserted in his earliest pleading that Chappell was an indispensable party, he made no effort to either join Chappell in this action, or to separately seek specific performance of an oral agreement between himself and Chappell. The court also found that throughout the litigation, Reece attempted to defeat the partitioning by contending that Smith had acquired his interest in the property illegally, and that his contentions so lacked any justiciable issue of law or fact that it could not be reasonably believed that a court would accept them. See OCGA § 9-15-14(a).

An award under OCGA § 9-15-14(a) must be sustained if there is any evidence to support it. As noted in Division 2, supra, any agreement between Chappell and Reece, without some further action on Reece’s part, did not affect Smith’s claim. And the trial court was correct that “[a] defendant co-tenant cannot defeat partition on the ground that the co-tenant seeking partition acquired his interest illegally from a third person who is not a party to the case.” Gaulden v. Mills, 240 Ga. 4, 239 S.E.2d 353 (1977). The court did not err in awarding attorney fees under OCGA § 9-15-14(a).

Judgments affirmed.

All the Justices concur.

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Notes:

[1] Reece had previously conveyed his interest in the 5.81 acres to the Pointers, from whom Smith acquired title.

[2] Reece also sought an equitable partition under OCGA § 44-6-140.

[3] We need not address the other issues Reece raises as to adverse possession.

[4] A document was identified at trial as Defendant’s Exhibit 14, and although not tendered into evidence, appears to be a photocopy of what Reece contended was a conveyance from T.J. to Reece. It was stated in testimony that the document read: “I, T.J. Chappell, sell and convey any and all rights and every interest to the property located on Poole Creek Road in Clayton, Georgia, and in Rabun County, to George M. Reece, for the sum of ___ dollars.” No amount was set forth. T.J. denied executing any such document, and testified that he signed a note for $1,000, and that at the same time also signed a blank sheet of paper at Reece’s request “for security reasons.” It is uncontested that there is no recorded conveyance from T.J. to Reece.

[5] This issue was tried before the court, apparently on Reece’s request for an equitable partition under OCGA § 44-6-140. The statutory partition had already been acted upon and the report of the partitioners filed with the court. The court apparently accepted the partition in the report as the court’s equitable partition.

[6] Reece’s second parcel has access by a county road, which the court noted had not been shown to have been abandoned.

[7] As the trial court pointed out, any attempt to establish an easement over this road by prescription fails for the same reason Reece’s claim of adverse possession fails. See Division 1, supra.

[8] Essentially, it was this strip that was allocated by the court to Reece as his share of the undivided portion of the tract.

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