Dunaway v. Morgan
| Docket Number: | 2004-CA-01360-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-03-2006 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Partition by sale - Oath of special master - Section 11-21-17 - M.R.C.P. 53 - Sale price - Section 11-21-1 Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 01-05-2004 Appealed from: WALTHALL COUNTY CHANCERY COURT Judge: W. Hollis McGehee, II Disposition: CONFIRMED SALE OF REAL ESTATE BY SPECIAL COMMISSIONER Case Number: 2003-0136 |
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| Party Name: | Attorney Name: | |||
| Appellant: | HELEN M. DUNAWAY |
RENEE M. PORTER |
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| Appellee: | DONALD L. MORGAN AND JOAN K. MORGAN, AS CO-TRUSTEES OF THE DONALD AND JOAN MORGAN LIVING TRUST, UNDER AGREEMENT DATED MARCH 25, 2002 | IRVING CONRAD MORD |
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| Topic: | Real property - Partition by sale - Oath of special master - Section 11-21-17 - M.R.C.P. 53 - Sale price - Section 11-21-1 |
| Summary of the Facts: | Donald and Joan Morgan owned an undivided three-fourths interest in certain real property, and the remaining one-fourth interest was owned by Donald Morgan’s sister, Helen Dunaway. Morgan attempted to purchase the one-fourth interest from Dunaway. When she did not accept, Morgan filed a complaint for partition. The chancellor entered an order finding that a partition by sale would better promote the interests of all parties and appointing an appraiser to value the property. The appraisal valued the property at $62,000. The court then entered an agreed order for sale of property. Dunaway was notified of the date of the sale both by publication and by a letter directed to her attorney. However, only Morgan was present at the public auction, where he purchased the property for $52,000. The special master promptly filed his report of sale with the court, whereupon Dunaway filed a motion to order resale of property prior to the scheduled hearing on the report. The chancellor denied the motion for resale and approved the report of the special master. Dunaway appeals. |
| Summary of Opinion Analysis: | Issue 1: Oath Dunaway argues that the chancellor abused his discretion in failing to set aside the sale of property because the special master failed to subscribe the oath found in section 11-21-17. The oath provided in section 11-21-17 is required when three commissioners are appointed to divide the property in kind, rather than when a special master is appointed to conduct a judicial sale. In addition, appointment of special masters is now governed by M.R.C.P. 53, which contains no requirement that the special master subscribe an oath. It is clear that the requirements of Rule 53 were met in the instant case. As such, section 11-21-17 cannot be used to impose an additional requirement on the actions of the special master. Issue 2: Sale price Dunaway argues that the sale price of $52,000 was so inadequate as to shock the conscience, and that the judgment of sale should therefore be set aside. Section 11-21-1 states that a partition of land shall be final unless made or procured by fraud. Here, the sale price of $52,000 was clearly adequate when compared to the appraised value of $62,000, and the chancellor did not manifestly err in confirming the report of the special master. |
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