November 13, 2017 § Leave a comment
Does the filing of a partition suit convert a joint tenancy with right of survivorship into a tenancy in common?
Richard Turner and Brenda Seymour purchased a home together in 1995. The deed recited that they held the property as “joint tenants with express right of survivorship, and not as tenants in common.”
In early 2011, Brenda filed a complaint to partite the property per MCA 11-21-3, which allows partition between joint tenants. Brenda died in November, 2012, and her estate was substituted as plaintiff. The chancellor ruled at a hearing in February, 2016, that the filing of the partition suit did not terminate the joint tenancy with right of survivorship, and that, therefore, Richard became sole owner of the property by survivorship after Brenda’s death. The Administrator of Brenda’s estate appealed.
In Seymour v. Turner, decided October 3, 2017, the COA affirmed. Judge Irving’s opinion is informative on joint tenancy and tenancy in common, and the effect a partition action has on them:
¶6. Joshua points out that four unities—time, title, interest, and possession—must be present in a joint tenancy, and if one of the four unities is eliminated or terminated, the joint tenancy defaults into a tenancy in common. He argues that when Brenda filed the lawsuit on February 3, 2011, the filing terminated the joint tenancy existing between the parties and rendered it a tenancy in common, because the unity of possession had been severed. “Unity of possession” means that each joint tenant must have an undivided share in the property. See Wilder v. Currie, 231 Miss. 461, 474, 95 So. 2d 563, 566 (1957). He contends that that was no longer the case upon the filing of the petition to partite, as once the partition suit was filed, Brenda was requesting either a division in kind or a division by sale. Consequently, he argues that the joint tenancy was transformed into a tenancy in common, which is not accompanied by a right of survivorship. Therefore, according to him, Brenda’s death did
nothing to deprive her estate of its ownership interest in the property.
¶7. We do not disagree with Joshua’s contention that “[t]here must be unity of title, time, interest[,] and possession in a joint tenancy.” Thornhill v. Chapman, 748 So. 2d 819, 828 (¶30) (Miss. Ct. App. 1999). The question here is, did the joint tenancy convert to a tenancy in common at the time that Brenda filed her suit to partite the property, vesting her interest in the property and eliminating the right-of-survivorship provision? We find that it did not. This Court has held:
[T]he distinguishing characteristic of a joint tenancy is the right of survivorship. By virtue of survivorship, the property descends outside of
probate from the deceased joint tenant to the surviving joint tenant. The requirements for the creation of a joint tenancy with right of survivorship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.” With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: [Carolyn] Jones owned the whole along
with [Anthony] Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Prior to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition hearing concerning their contributions to buying the house.
Jones [v. Graphia], 95 So. 3d at 753-54 (¶¶7-8) [(Miss. App. 2012)] (emphasis added) (footnote and citations omitted). Appropriately, the court in Jones ruled that upon the death of one joint tenant, the right of survivorship automatically transfers the whole property to the surviving joint tenant.
¶8. Joshua, in an attempt to distinguish Jones, argues that “[i]f Jones enjoyed ownership of the whole prior to the proceeding and lost this enjoyment when Graphia filed, then her death afterward would be at a time after she lost this enjoyment.” We disagree. The filing of Brenda’s complaint had no effect on the status of the property as a joint tenancy. At that point, no rights had been lost, but became merely subject to loss depending on the trial and the chancellor’s ultimate ruling. If Joshua’s analysis were the rule of law, all a party would have to do is file a complaint to partite to convert the property from a joint tenancy to a tenancy in common and defeat the right of survivorship, effectively rendering the court’s ultimate disposition of the case futile.
¶9. Although merely persuasive, the Michigan Supreme Court addressed this very issue in Jackson v. Estate of Green, 771 N.W.2d 675, 677 (Mich. 2009), as follows:
A party can sever a joint tenancy by compelling a partition. Until an order of partition has been entered, however, a partition has not been compelled and, thus, the joint tenancy has not been severed. See Anno: What acts by one or more of joint tenants will sever or terminate the tenancy . . . (explaining that “[i]t is not the filing of the partition action which terminates the joint tenancy, but only the judgment in such action which has that effect”).
Indeed, the universal rule in the United States is that a pending suit for partition does not survive the death of one of the joint tenants. See Heintz v. Hudkins, 824 S.W.2d 139, 142-143 (Mo. [Ct.] App. 1992), and cases cited therein. This rule is based on two related concepts: First, the theory of survivorship—that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants—and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final judgment.
For clarity, at the time that Brenda filed her complaint, the joint tenancy was still intact, and when she died, the property automatically transferred to Richard through the right of survivorship. There had been no final order issued at the time of her death, so the tenancy was never severed.
Nothing earth-shaking here. Filing a partition suit will not convert joint tenancy to tenancy in common, but a partition judgment will.
February 14, 2017 § Leave a comment
“Heir property” is an often-heard term in Mississippi, used to describe the convoluted and sometimes impossibly complicated ownership of real property that has passed through several generations without administration of an estate or probate of a will.
Walter and Ressie Quinn inherited an interest in some property from Walter’s mother. Although most of the siblings quitclaimed their interests to the Quinns, one sibling quitclaimed her interest to Jessie and Arma Morton. The Quinns filed suit against Arma for partition of the property. They did not join Jessie.
When Arma filed her answer she did not include a defense of failure to join a necessary and indispensable party (R12(h)(2)).
The court ordered a sale of the property, which took place on the courthouse steps on September 29, 2014. When it came time to confirm the sale, Arma raised for the first time that the sale was invalid for failure to join Jessie as a party. So the Quinns filed an amended pleading adding Jessie as a party, and the Mortons waived process and filed an answer. At a final hearing, it was discussed that, although Jessie objected to a sale, he declined to testify.
Following court proceedings, the judge signed a judgment confirming the sale and finding that Jessie had failed to show that he had been prejudiced in any way by the sale. The judgment also found that Jessie had failed to show prejudice because Arma had failed to raise a R12(h)(2) defense. Arma and Jessie appealed.
In Morton v. Quinn, handed down December 13, 2016, the COA reversed and remanded. Judge James wrote for the majority:
¶10. Since the first issue is dispositive, we decline to address the other issue on appeal. “[T]he decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003)). After the amended petition was filed, adding Jessie as a respondent, the sale was not vacated, and Jessie was not given a chance to meaningfully participate in the disposition of his property. Jessie favored a partition in kind rather than a sale, yet he was not afforded the opportunity to respond to the Quinns’ request for a judicial sale.
¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) permits a judicial partition by sale only where: “[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.” At the hearing to confirm the judicial sale, the Quinns asserted that Jessie had to illustrate that the omission of his name as a respondent resulted in prejudice. The trial court afforded him with an opportunity to testify as to any prejudice that he may have incurred. Jessie declined to testify but asserted that he was prejudiced by the sale since he preferred a partition in kind. Moreover, the record shows that Jessie lived on the property, and that the sale would directly affect the location of his patio and other fixtures. Since the disposition of the land directly impacted Jessie’s rights to the subject property, the judicial sale should have been vacated.
¶12. In Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Supreme Court held, “While the question of joinder of an absent person generally must be timely raised in the trial court, an appellate court may consider the issue even though it was not initially raised below, and may do so sua sponte.” In the present case, the nonjoinder was raised, but it was not properly raised by the filing of a motion. However, Jessie did raise the matter at the hearing to confirm the sale, which sufficiently preserved the matter on appeal. “Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires [parties] to raise the issue of failure to join a necessary and indispensable party in the pleadings under [Mississippi ] Rule [of Civil Procedure] 7(a) or by motion for judgment on the pleadings or at the trial on the merits.” Marathon Asset Mgmt. LLC v. Otto, 977 So. 2d 1241, 1246 (¶14) (Miss. Ct. App. 2008).
¶13. The supreme court has noted that “parties whose rights are to be affected are entitled to be heard . . . . Furthermore, they must be notified in a manner and at a time that is meaningful.” Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (internal citations omitted). Jessie was not properly noticed or added as a respondent until a year after the matter was initiated. Once the Quinns filed their second amended petition for a judicial sale, naming Jessie as a respondent, the sale of the subject property should have been vacated and renoticed for a proper sale, involving all parties if Jessie’s in-kind partition did not materialize. Nevertheless, the court presumed that since Jessie and Arma were husband and wife, Jessie had knowledge of the actions regardless of his omission as a respondent in the matter. We find that presumption was in error.
Several lessons in this:
- The COA has made clear in many cases, including this one, that the mere fact that you know about litigation does not confer jurisdiction over you.
- When Jessie finally awoke and decided to participate, I guess he should have been more forceful in asserting his objection to the sale.
- I would have affirmed, because after the amended complaint was filed Jessie was given the opportunity to object and even to testify in opposition to the sale at the confirmation hearing, but he declined. As a trial judge, one often wonders how far we have to go to accommodate people who simply will not protect themselves even when they have the means to do so.
- When you have litigation involving “heir property,” jump through every hoop and go to extra trouble to discover and get process on everyone who has or claims to have an interest in the property. That extra attention may avoid big headaches later.
January 14, 2016 § 2 Comments
Robert and Betty Coleman were divorced in 2002. Under the terms of the divorce judgment, Beverly got exclusive use and possession of the former marital residence, which was situated on family land deeded to the couple by Beverly’s mother, until the parties’ minor child attained majority age. Beverly was responsible to pay the mortgage debt, taxes, and insurance on the property, and the parties were to split equally any maintenance expenses. The judgment did not spell out what was to be done when the child turned 21.
In the years following the divorce, Beverly lived in the home and dutifully paid the sums assigned to her. Robert never paid any of the maintenance expenses.
When the child turned 21 in 2013, Beverly filed an action, apparently for modification of the divorce judgment, seeking possession, title to, and ownership of the home.
Robert counterclaimed for partition, and he filed a motion for a summary judgment that partition, rather than modification, was the proper avenue to accomplish the division. The chancellor agreed with Robert, ruling that “the parties are not married, the property is no longer the marital homestead and the property is subject by law to a division by partition as provided by statute.” That’s a neat, pinpoint ruling that avoids the problem that property division may not be modified.
A hearing was held on the petition, and the chancellor ruled that Betty should have title. He adjusted the equities by ordering Beverly to pay Robert $34,103.70, which amounted to his half-equity in the property at the time of the divorce adjusted upward for appreciation over time.
Robert appealed, arguing that the trial court impermissibly modified the divorce judgment and unfairly partited the property.
In Coleman v. Coleman, handed down January 12, 2016, the COA, by Judge Griffis, affirmed.
So, did the chancellor improperly modify the divorce judgment? Judge Griffis responds:
¶7. “A cotenant wishing to partite real property subject to a divorce decree is not required to file suit to modify the decree, but may exercise her statutory right to partition by filing a petition for partition.” Mosby v. Mosby, 962 So. 2d 119, 123 (¶12) (Miss. Ct. App. 2007) (citing Blackmon v. Blackmon, 350 So. 2d 44, 46 (Miss. 1977)). Robert argues that the chancellor essentially modified the divorce decree and that this modification was improper.
¶8. “This argument is without merit because the chancellor clearly granted the petition for partition and did not, in fact, modify the decree.” Id. Robert requested a partition, and the chancellor stated in his judgment that “the parties are no longer married, the equities need to be adjusted[,] and the partition statutes provide a sound method of arriving at a just and equitable result.” The court “proceeded accordingly under partition.” As the chancellor’s decision was based upon the partition statutes and he did not modify the divorce decree, the Court finds this issue without merit.
And did the chancellor abuse his discretion in how he awarded title and adjusted the equities? Again, Judge Griffis:
¶9. When parties seek a partition of land, “the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title.” Miss. Code Ann. § 11-21-9. In doing so, “[t]he court may adjust the equities between and determine all claims of the several cotenants . . . .” Id.
¶10. Generally, “a partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi.” Cathey v. McPhail & Assocs., 989 So. 2d 494, 495 (¶4) (Miss. Ct. App. 2008) (citing Fuller v. Chimento, 824 So. 2d 599, 601 (¶8) (Miss. 2002)). Robert and Beverly agreed that the home could not be divided in kind and that it should be sold under statute. They also agreed to a private sale to allow Beverly to purchase the home. A chancellor may order the sale of property and “a division of the proceeds among the cotenants according to their respective interests.” Miss. Code Ann. § 11-21-11 (Rev. 2004). As both parties agreed to a sale, the chancellor essentially needed to “adjust the equities between and determine all claims” of Robert and Beverly and divide “the proceeds” between Beverly and Robert “according to their respective interests.” Miss. Code Ann. §§ 11-21-9 & 11-21-11.
As for how the chancellor adjusted the equities, the COA went through the court’s analysis, and found it proper that Robert was awarded his equity at the time of the divorce plus its appreciation, and Beverly was awarded her equity at the time of the divorce, plus its appreciation, plus the additional equity that accrued over the years due to her payment of the mortgage debt. The COA found no merit in Robert’s argument.
Most crucially, the trial judge’s findings were supported by substantial evidence:
¶15. Keeping in mind the appropriate standard of review, this Court holds that the chancellor’s findings of fact and conclusions of law are supported by substantial evidence and are not an abuse of discretion. Robert did not provide any alternatives to the findings of the chancellor. Furthermore, the parties both agreed that a sale to Beverly was ideal. The chancellor’s well-reasoned conclusions are supported by the record and the briefs of the parties. The partition statutes allow for the chancellor to divide the proceeds among the cotenants according to their interests in the property. Miss. Code Ann. § 11-21-11. After inspecting the record, this Court is unable to see that Robert was denied any of his rights as a cotenant in the chancellor’s final decree. Finding no error, this Court affirms.
This is not one of those spectacular, keeper cases that one whips out every few trials. It’s just a workaday, nuts-and-bolts decision that provides a glimpse into the quotidian matters that stream steadily through the chancery courts every day, and how the chancellors are called upon to fashion common-sense, practical solutions.
August 13, 2012 § 1 Comment
Carolyn and Anthony lived together in Louisiana without benefit of marriage. They purchased a home together in Diamondhead, on the Mississippi gulf coast, which they titled as joint tenants with right of survivorship. They had the idea that they would later marry, move from Louisiana, and take up residence in their Hancock County home.
Anthony paid the entire $274,000 purchase price, along with the utilities, taxes, insurance and property owners association dues. Carolyn testified that she used some of her personal property to furnish the house, and she put up drapes and made other cosmetic improvements.
As things sometimes do, the relationship soured, and Anthony filed a petition in chancery court to partite the property by sale, claiming it was not susceptible to partition in kind. He also asked for an adjustment of equities, since he had made the greater contribution to the acquisition. Carolyn denied that Anthony should have the adjustment, since the parties were on an equal legal footing in relation to the property by virtue of the joint tenancy.
The chancellor found that to award Carolyn any money from the partition sale would be an unjust enrichment to her. He also cited MCA 11-21-9, providing for an adjustment of equities between the parties, and 11-21-33, which deals with owelty. He awarded Anthony 100% of the proceeds of sale of the property.
In a rather brief opinion rendered in the case of Jones v. Graphia, on August 7, 2012, the COA affirmed the chancellor. Judge Griffis, writing for the majority, distinguished cases cited by Carolyn and upheld the chancellor’s adjustment of equities per the statute, citing the appellate court’s limited scope of review.
Judges Carlton and Maxwell wrote dissents that are worth a read, particularly if you do a lot of this kind of work.
To me, the significance of this decision is that it comes in the wake of the Cates v. Swain case decided by the COA on April 17, 2012, and authored by Judge Maxwell. That is the case, you may recall, that held an unmarried, same-gender couple not to have acquired any equitable interest in assets accumulated during the relationship. I posted about the case here.
The obvious distinction between the two cases is that in Cates v. Swain the parties intentionally did not title the real property jointly, while in Jones v. Graphia the property was titled in joint ownership.
Once again, if you are advising unmarried couples or individual parties to such a relationship, the implications of these two cases are clear: if the parties do not formalize their relationship, at least one, and maybe both, will have no legal protection. Jones was protected, as the majority opinion pointed out, in the sense that if Graphia had died she would have been vested with 100% title to the property. The court does not say so, but it is implicit in the opinion that, had Jones made any contribution to the accumulation of equity in the property, she would have been entitled to something in the adjustment of equities. Likewise, since Elizabeth Cates was not on the title, and the parties did not have any enforceable contractual obligation to one another, she had no claim to any interest in the property.
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.