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.
(Orig. Code 1863, § 3115; Code 1868, § 3127; Code 1873, § 3183; Code 1882, § 3183; Civil Code 1895, § 4783; Civil Code 1910, § 5355; Code 1933, § 85-1501.)
Law reviews.- For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Enjoining partition.
- It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29, 295 S.E.2d 736 (1982).
Cited in Mayer v. Hover, 81 Ga. 308, 7 S.E. 562 (1888); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Joel v. Joel, 201 Ga. 520, 40 S.E.2d 541 (1946); Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Givens v. Dunn Labs., Inc., 138 Ga. App. 26, 225 S.E.2d 480 (1976).
Distinction Between Equity and Law
Distinction between equitable and statutory partitions has not been eliminated. Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975).
Former Civil Code 1910, § 5355 (see O.C.G.A. § 44-6-140) was an alternative to the statutory method of petition provided in former Civil Code 1910, § 5358 (see O.C.G.A. § 44-6-160). Cock v. Callaway, 141 Ga. 774, 82 S.E. 286 (1914).
Tenant in common or co-owner of land is entitled to either statutory or equitable partition. Billings v. Billings, 242 Ga. 632, 250 S.E.2d 480 (1978).
Equity may adjust complicated and unascertainable interests.
- When the title to land is in tenants in common, and their several interests have become complicated and cannot be definitely ascertained and set apart at law, equity will entertain jurisdiction to adjust by one decree the rights of all. Fountain v. Davis, 71 Ga. App. 1, 29 S.E.2d 798 (1944); Waycross Military Ass'n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).
Plaintiff must prove necessity for equitable relief.
- Unless equitable jurisdiction is applied, parties seeking partition are required to resort to legal remedy. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).
While a petition will not be dismissed if the petition states a claim for either legal or equitable partition, the plaintiff must prove the necessity for equitable relief in order to justify the equitable decree. Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975).
Plaintiff in an action for equitable partition must show that there is a necessity for equitable relief or that circumstances make equitable relief more just and suitable. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).
Need for obstacle to legal remedy, or peculiar circumstances.
- Section is inapplicable unless there is obstacle rendering legal remedy less ample and adequate. Greer v. Henderson, 37 Ga. 1 (1867); Rosenberg v. Phelps, 159 Ga. 607, 126 S.E. 788 (1925) (see O.C.G.A. § 44-6-140).
When no peculiar circumstances are shown, equity will not take cognizance of a partition action. Saffold v. Anderson, 162 Ga. 408, 134 S.E. 81 (1926).
An application to partition lands between tenants in common may be instituted at law, or it may be brought in equity whenever the remedy at law was insufficient or peculiar circumstances render the proceeding in equity more suitable and just. Unless for some special reason equitable jurisdiction was applicable, a party seeking the writ of partition was required to resort to the remedy afforded by former Code 1933, § 85-1504 (see O.C.G.A. § 44-6-160). Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).
Petition not made equitable merely by allegations of uncertainty of interests and difficulty of partitioning.
- Allegations in a petition that there was some uncertainty about all parties having an interest in the land and praying for the appointment of a guardian ad litem for unnamed parties at interest, and alleging that the property could not be partitioned by metes and bounds, do not make the petition an equitable one for partition. Brinson v. Thornton, 220 Ga. 234, 138 S.E.2d 268 (1964).
Equitable partition considered separately from petition at law.
- When a tenant in common alleges grounds for an equitable partition, the petition constitutes a separate case from the petition at law and must be treated accordingly. Frierson v. Dye, 150 Ga. 206, 103 S.E. 162 (1920).
Action properly treated as one in equity for partitioning when defendant claimed title by prescription.
- When the title and interests to realty of the parties in dispute over construction of the will had become more complicated by defendant's claim of title by prescription, the trial court did not err in treating the action as one in equity for partitioning. Bailey v. Johnson, 247 Ga. 657, 278 S.E.2d 384 (1981).
Any form of partition would not end dispute.- In a dispute over ownership of an access driveway, the trial court properly granted the defendants summary judgment on the petition to partition since the access driveway had no value other than the driveway's service to the lots to which it was connected since all owners maintained easement rights to use the access driveway regardless of the fee ownership; thus, partition of the access driveway so as to consolidate fee ownership would not put an end to the dispute. Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).
Statutory partition more appropriate.
- Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496, 755 S.E.2d 126 (2014).
Circumstances Supporting Partition
1. General
Petition not defeated because opposing party owns life estate in other undivided interests.
- One who holds title to an undivided interest in land may not, in an action to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956).
2. Specific
Tenants excluded from possession may maintain action.
- When one cotenant is in exclusive possession and denies the title of the others, the tenants so excluded may maintain an action for partition. Hatton v. Johnson, 150 Ga. 218, 103 S.E. 233 (1920).
When there is an agreement between the tenants in common to divide severable property, in pursuance of which the portion of one cotenant is allotted to that cotenant, that cotenant may, upon demand and refusal to deliver the property, maintain an action for the conversion thereof against the former cotenant, having the property in that tenant's possession, although this portion was never in fact separated from the residue. Hemphill v. Hemphill, 62 Ga. App. 358, 7 S.E.2d 762 (1940).
Section applicable where matters of account involved.
- When matters of an account against a cotenant are involved and a sale is necessary to partition, this statute applies. Lowe v. Burke, 79 Ga. 164, 3 S.E. 449 (1887) (see O.C.G.A. § 44-6-140).
When matter of account against an insolvent cotenant for past profits of the land is involved, and where partition of the premises cannot be made without a sale, equity has jurisdiction to decree a partition and account. The element of account and insolvency will give equity jurisdiction. Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950).
While equity jurisdiction ceases when the legislature gives a specific remedy at law, a specific legal remedy for partition is provided, and equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an accounting 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. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).
Property which is owned jointly may be partitioned in a divorce action by the court as in an equitable proceeding. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).
In divorce cases heard without a jury, as equitable proceedings, a trial judge may divide property as equity demands, regardless of which party receives an award. Reaves v. Reaves, 244 Ga. 102, 259 S.E.2d 52 (1979).
Partition unavailable for unmarried parties' property.
- When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637, 805 S.E.2d 817 (2017).
Procedure
Superior court which has general equitable powers has jurisdiction to partition property. Gorman v. Gorman, 239 Ga. 312, 236 S.E.2d 652 (1977).
Court may entertain partition proceeding without first trying, or in connection therewith, accounting action concerning the same property held in cotenancy. Lankford v. Milhollin, 200 Ga. 512, 37 S.E.2d 197 (1946).
Owner of water easement as necessary party.
- While all parties having an interest in the property sought to be partitioned must be named defendants, since the United States government had an easement or grant of two-thirds of the water flow to the spring located on the land to which all the interests of all the tenants in common were subject, and only the property was sought to be partitioned, it was not necessary for the United States government to be named as a party defendant, even if such might be done with or without its permission and consent. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957).
Effect of agreement on partition action.
- Generally, party will not be decreed partition if it would be contrary to the party's agreement. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).
Objections to return of appointed commissioners not timely filed.
- Since equity has jurisdiction in cases of partition, it is too late to file objections to the return of the appointed commissioners when the return has been entered up as the judgment of the court with the knowledge of both parties to the proceeding. Drew v. Drew, 151 Ga. 11, 105 S.E. 469 (1921).
Appeal in partition action to enforce separation agreement.
- Although it had its roots in the parties' divorce action, an action for an equitable partition to enforce the separation agreement which was part of the divorce decree is a new action and not merely a continuation of the divorce action. For this reason, O.C.G.A. § 5-6-35 does not apply to this situation, and husband's direct appeal from the partition order is proper. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).
Relief Granted
Court has power to determine all various matters in dispute.
- When a tenant in common applies to the superior court to have certain land so held partitioned, and to have an accounting between the tenants in common, such a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).
Court decree transfers title.
- Whether the division of a estate was entered into under the provisions as to the distribution of estates in kind, or was made under the provisions as to the partition of estates by agreement of the parties, the division award of the commissioners, which was approved and made the decree of the court, was sufficient to transfer title out of the estate and the heirs to the persons to whom the particular portions of the estate were awarded. Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951).
Partitionship may be accomplished through receivership.
- There is no reason why partitionment in equity may not be fully and effectually accomplished through and by receivership. Waycross Military Ass'n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).
Court may adjust cotenants' accounts.
- Having properly assumed jurisdiction for the partition of the property of the cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81, 701 S.E.2d 856 (2010).
Court may make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).
Compensation allowed for counsel in proper case.
- In an equitable partition proceeding, the judge of the superior court before whom the proceeding is pending has the power under general equitable doctrine, in a proper case and where the circumstances justify it, to allow compensation for the plaintiff's counsel as a charge against the fund arising from the sale of the land partitioned. Especially is this true when other equities are involved, such as the settlement of involved accounts between the parties, when deeds are canceled, and when a receiver is appointed to manage and sell properties. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).
In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees but, in an equitable proceeding for partitionment and for other relief, an allowance for attorney's fees may be made by the court from the common fund. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974).
Illustrative Cases
Equitable partition found authorized.
- When two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and when, after the station had been used by both companies jointly and individually for several years, the company that did not own the land became insolvent, and all the company's property, including the company's interest in the station, was duly sold under foreclosure proceedings and purchased by private individuals, and since the railroad of this company was dismantled and its business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225, 152 S.E. 243 (1930).
When a divorce decree made no provision for alimony, and when the petition of the wife alleges that the defendant is disposing and threatening to dispose of property owned in common, and that he is insolvent, and the wife prays for a money judgment and an injunction, the petition is sufficient to allege reasons for an equitable partition and an accounting, rather than by a partition at law. Wallack v. Wallack, 211 Ga. 745, 88 S.E.2d 154 (1955).
In a partition action in which the parties disputed the extent of one party's interest in the property, and one party counterclaimed for an equitable division, accounting, and contribution, claiming to have paid all taxes and maintenance costs for over 20 years, the need for an accounting between the tenants in common, alone, gave the trial court equity jurisdiction to decide the matter. Ransom v. Holman, 279 Ga. 63, 608 S.E.2d 600 (2005).
Minority owner's claim of error in the partitioning of a parcel of property was rejected as, while a pending contract with a prospective buyer was taken into consideration, the property was partitioned in the way desired by the minority owner and the surveyor; the minority owner received tracts that were worth more than the owner would have been received if the property had remained intact and had been sold to the buyer and the owner received tracts valued at more than the interest owned before the partitioning. Talmadge v. Elson Props., 279 Ga. 268, 612 S.E.2d 780 (2005).
Agreement to occupy home not partnership.
- Agreement between the cotenants of a city lot, on which is located a residence, to occupy the residence jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the co-owners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).
Equitable accounting found authorized.
- When the petitioner in a partitioning proceeding prays for an accounting for water sold from a spring on property to be partitioned by one of the tenants in common, and alleges that a lease agreement, whereby the petitioner's interest in the water rights had been granted to the city, had been declared void by a court decision and that one has not received compensation for vast quantities of water used from the spring, the only accounting available to the petitioner is one in equity, there being no adequate remedy at law for an accounting for the use of the water by another tenant in common. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957).
Distribution of sales proceeds upheld in real estate transaction.
- In a dispute over real property and specific performance of a Redemption Agreement, the trial court did not abuse the court's discretion in making an equitable award because O.C.G.A. §§ 44-6-140 and44-6-141 granted the court the authority to adjust the accounts and claims of the parties as required by the circumstances and, more specifically, authorized the trial court to consider all of the circumstances, including any circumstances that occurred after the making of the contract. Bagwell v. Trammel, 297 Ga. 873, 778 S.E.2d 173 (2015).