Oops … and a Further Oops in a Partition Suit

June 18, 2013 § 2 Comments

Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.

That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.  

Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.

Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.

The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.

After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.

[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]

After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.

The chancellor signed the agreed judgment. No one appealed.

When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).

The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.

So, did the COA’s decision finally untangle the knot? Well, in a word, no.

Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor: 

¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.

So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.

Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.

Tagged: ,

§ 2 Responses to Oops … and a Further Oops in a Partition Suit

  • Hale says:

    In the same light, Justice Randy Pierce presided over a will contest in a case in which the decedent was too cheap to hire a surveyor before the decedent drew a map to divide property and attached it to his will. The decedent “thought” he was giving his house to one daughter though he placed the property in a section he indicated on his hand-drawn map that was to be given to a sibling. A family feud errupted which included the police and claims of tresspass.

    After the attorney who prepared the will stated what he thought the decedent’s intent probably was, Judge Pierce, took the map the decedent attached to the will, went to the property with counsel and a surveyor and flagged what he thought was probably the decedent’s intent. Nobody was really happy, the decision was as good as it could have been, and it costs three times if they’d have paid for a survey in the first place. It did not help the family get along either.

    • Larry says:

      That highlights one of the most frustrating things about judging: inadequate or incomplete proof.

      It’s not the judge’s job to make sure the proof is adequate (although I have refused to adjudicate cases until appraisals are done, for example), but we are often tasked with making a decision based on scant, incomplete, inadequate proof.

      Like you say, that survey would have been a lot cheaper than what transpired.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading Oops … and a Further Oops in a Partition Suit at The Better Chancery Practice Blog.


%d bloggers like this: