654 S.E.2d 621
Partition by sale was unknown at common law; the right to partition by sale rests solely on statutory enactment. See Loudin v. Cunningham, 82 W. Va. 453, 456, 96 S.E. 59, 60 (1918); W. Va. Code § 37-4-3 (1957) (Repl. Vol. 2005). Although partition by sale is possible, partition in kind remains the preferred method by which interests in jointly owned land should be divided. For well over a hundred years, this Court has held that:
Joint owners of land are entitled to have partition in kind.
. . . A sale cannot be decreed in a partition suit unless it
appears, by report of commissioner or otherwise by the record,
that partition cannot be conveniently made, and also that the
interests of those interested in the land or its proceeds will be
promoted by a sale.
Syl. Pt. 7, Roberts v. Coleman, 37 W. Va. 143, 16 S.E. 482 (1892). This preference for
partition in kind was most recently acknowledged in syllabus point three of Ark Land Co.
v. Harper, 215 W. Va. 331, 599 S.E.2d 754 (2004), wherein this Court stated:
In a partition proceeding in which a party opposes the
sale of property, the economic value of the property is not the
exclusive test for deciding whether to partition in kind or by
sale. Evidence of longstanding ownership, coupled with
sentimental or emotional interests in the property, may also be
considered in deciding whether the interests of the party
opposing the sale will be prejudiced by the property's sale. This
latter factor should ordinarily control when it is shown that the
property can be partitioned in kind . . . .”
Obviously, the first question that needs to be addressed in a partition case is
whether partition in kind can be conveniently made. See Consolidated Gas Supply Corp.
v. Riley, 161 W. Va. 782, 247 S.E.2d 712 (1978). In order to decide this issue, “[t]he most
usual method of ascertaining whether the land is susceptible of convenient partition is by the
report of commissioners.” Syl. Pt. 2, in part, Loudin v. Cunningham, 82 W.Va. at 453, 96
S.E.2d at 59.
The record in this case, which the majority only selectively relates parts of in
its opinion, reflects that no commissioners were appointed to make the primary
determination of whether the jointly owned property could be conveniently partitioned in
kind, and therefore the decision to order sale of the property was premature at best.
To gain a better insight into this case, it is desirable to supplement the
abbreviated recitation of facts in the majority opinion. The record reflects that Appellant
and her sister were initially represented by an attorney, (See footnote 1) who responded to the Morton
brothers' request for partition by sale by filing an answer asserting that “[t]he property can
most certainly be partitioned in kind.” A dispute arose between the attorney and the sisters
about payment of legal fees before any court appearance occurred The record contains a
letter from the attorney dated January 18, 2006, addressed to Appellant's sister, expressing
his concern about the agreement he believed he had reached with the sisters regarding fees.
In that letter, the attorney further indicated that if the partition suit could not be resolved
amicably, he would move the court to withdraw as counsel for the sisters. On February 14,
2006, a status conference was held and matters which occurred at that hearing were related
in an Agreed Order filed on March 21, 2006. This order reflects, among other things, that
the parties had all agreed that the property was not susceptible to partition in kind. The
record also contains a letter dated May 17, 2006, from Appellant to the presiding judge in
which Appellant stated that she never requested that this attorney represent her, and she
believed the attorney was misrepresenting her interests. The record shows that a status
conference was held on June 2, 2006, with the resulting order reflecting: the attorney's
motion to withdraw as counsel for the sisters was granted; the appraisal Appellant obtained
for the 3.64 acres she desired as her 1/7th interest was lodged in the court file; a final hearing
was set for June 28, 2006, with the parties being advised that the lower court would arrive
at a final decision regarding partition at the end of that hearing; and directing the sisters to
“move with dispatch to obtain other counsel to appear in this matter on their behalf.” There
is no transcript in the certified record of what occurred on June 28, 2006, although it is clear
from the September 18, 2006, order of the court that a hearing was held and testimony was
received by the court on that date. Among the items filed in the court record on June 28,
2006, was Appellant's appraisal of 3.64 acres.
The record does contain a transcript of the continuation of the June
hearing, held on July 28, 2006. At the July 28 hearing, Appellant was represented by a
different lawyer who kindly donated his services to try to promote the satisfactory resolution
of the dispute. This attorney questioned two appraisers who testified at the July 28, 2006,
hearing; one appraiser had been retained by the Mortons and the other appraiser engaged
by Appellant. Appellant's attorney directed questions to both appraisers about whether it
was possible to carve out some portion of land that would represent a 1/7th interest which
would allow Appellant to remain on the property. Significantly, both appraisers indicated
it was possible. Appellant also testified at the hearing that although she would prefer not
to have to move her trailer, she was willing to bear the expense to move to a different
location on the property if it meant that she could keep a part of the land.
Based upon these disputed contentions, the lower court determined that “the
subject real estate cannot be conveniently partitioned in kind” and ordered partition by sale.
I respectfully submit that the court below abused its discretion in making that ruling because
the evidence before the court suggested the contrary: that the land could be partitioned in
kind to give Appellant 1/7th of the value thereof at some suitable location, leaving the
remainder to be sold, as the petitioners requested. Since the record does not establish that
partition in kind could or could not be conveniently made, the lower court had a duty to
conform the proceedings with the longstanding practice of appointing commissioners for the
purpose of obtaining a report addressing the primary question of whether partition in kind
could be conveniently made. Failing to do so represents a blatant abuse of discretion which
merits the reversal of the decree below.
I recognize that the case had dragged on for some time, undoubtedly giving
rise to frustration among the parties. However, the court below was fully aware that the
Appellant's interests had not been fully represented, that the supposed agreed order favoring
sale did not enjoy Appellant's endorsement and that Appellant had experienced difficulty
in acquiring and keeping counsel throughout the proceeding. When counsel was obtained,
a sufficient record was made to indicate that partition in kind might well be conveniently
made so as to address Appellant's right to 1/7th of the value of the land, in kind, and to
address the other parties' desire to have their 6/7ths sold at sale.
As I believe that the proper resolution of this case lies in reversal of the lower
court's decision and remand for the appointment of commissioners to address whether
partition in kind is feasible, I respectfully dissent.
I am authorized to state that Justice Starcher joins in this dissenting opinion.