PARTITION: BY SALE OR IN KIND?
February 29, 2012 § 5 Comments
Partition is the legal mechanism in Mississippi for dividing joint owners’ interests in real property when they can not otherwise agree to do so. The partition statute is MCA § 11-21-1, et seq.
It seems from where I sit that almost all partition cases come before the court with near-unanimous agreement among the parties that, if the property must be divided, sale will be the most advantageous method.
Even in contested cases, the prevailing view appears to be that the property should be divided by sale. That is not the law in Mississippi, however. Partition in kind is the favored method of division.
In the case of Fuller v. Chimento, 824 So.2d 599, 601-2 (Miss. 2002), the Mississippi Supreme Court laid out the law on the subject:
A partition in kind is the preferred method of partition of property under Mississippi law. Overstreet v. Overstreet, 692 So.2d 88, 91 (Miss.1997); Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992); Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992); Monaghan v. Wagner, 487 So.2d 815, 820 (Miss.1986); Bailey v. Vaughn, 375 So.2d 1054, 1057 (Miss.1979); Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919, 926 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852, 854 (1961); Blake v. St. Catherine Gravel Co., 218 Miss. 713, 67 So.2d 712, 714 (1953); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 594 (1924); Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 156 (1911); Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539 (1908). See also 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 60:99, at 56 (2001).
The propriety of a partition sale or partition in kind is determined on a case-by-case basis. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 197 (1944). To justify a partition by sale, the party seeking the sale must bring his case squarely within Miss. Code Ann. § 11-21-11 (Supp.2001) which states in pertinent part that
If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.
The use of the conjunction “or” in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) “better promote the interest of all parties than a partition in kind” or (2) “if the court be satisfied that an equal division [of the land] cannot be made.” Id. See Blair, 601 So.2d at 850. See also Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908, 911 (1949); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898). “Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale.” Blair, 601 So.2d at 850. Furthermore, a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met. Shorter, 54 So. at 156.
The joint owner seeking a partition sale has the burden of proving that the land is not susceptible of partition in kind and that a sale is the only feasible method of division. Overstreet, 692 So.2d at 90-91; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 448 (1931).
It is permissible for the court to order partition by sale as to one parcel, and partition in kind as to another. The court’s action has to be supported by the requisite proof. I urge you to read the cases to get a feel for exactly what it is you need to prove.
When you have a partition suit and your client or the other party is objecting to a division in kind, you should expect your position to fail if you do not provide adequate evidence. If you want a sale, you must put on proof how sale will better promote the interests of the parties or that the property can not be equally divided in kind. The party wanting a sale has the burden of proof. If the party wanting a sale has met his burden of proof and you want division in kind, you must put on proof contradicting that of the party wanting a sale.