Cathey v. McPhail & Assoc., Inc.
| Docket Number: | 2007-CA-00830-COA Linked Case(s): 2007-CA-00830-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-26-2008 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Partition in kind - Partition by sale - Private sale Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Chandler, Griffis, Barnes, Ishee, Roberts, and Carltong, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 03-11-2007 Appealed from: DeSoto County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: PARTITION BY SALE ORDERED AND CONTRACT OF SALE TO MCPHAIL & ASSOCIATES APPROVED Case Number: 01-05-686 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ISAAC CATHEY, KATHRYN COLE DAVIS, ROSS COLLINS, ADDELENE COLE BOWEN, VERLEADO COLE TUNSTALL, ROSIE COLE, LENWOOD CATHEY, ET AL. |
FREDERICK B. CLARK |
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| Appellee: | MCPHAIL & ASSOCIATES, INC. | M. LEE GRAVES |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Partition in kind - Partition by sale - Private sale |
| Summary of the Facts: | The real property that is the subject of this litigation had approximately 300 heirs, some of whom sought a division of the property. All the heirs are co-tenants having various percentages of ownership interest in the property. There was a dispute as to whether the property should be partitioned in kind or by sale. There was also difficulty in establishing the identities of all those with an interest in the proceedings. After many complaints were filed and amended by some of the heirs, and after an aborted attempt to approve a contract for the sale of the land, the chancery court ordered approximately 160 acres of land sold and approved the contract of sale to McPhail & Associates, Inc. Isaac Cathey appeals. |
| Summary of Opinion Analysis: | Cathey argues that the property should be partitioned in kind rather than by sale. A partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi. However, in some cases, partition by sale is utilized when partition in kind is not feasible. Specifically, if a court finds that partition by sale will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division of the land cannot be made, it shall order a sale of the lands. Cathey points out that the group he represents owns 79.04 acres out of the roughly 160 acres in dispute and that McPhail owns 44.6 acres, with the defaulted defendants owning only 33.86 acres. He argues there is nothing in the record indicating that it would be in the best interest of all the parties to sell the property. The chancellor determined that the property was not subject to partition in kind because part of the property lies in swampy or low-lying areas, part in a flood zone, other parts in hilly terrain, and the part in the northwest corner contains mature timber; lack of access for the number of record owners that would need to be satisfied as a result of the limited frontage across the east and on the southern portion; the large number of individual interests, some interests being extremely small; and the $20,000 in existing expenses from the partition with no way to cover expenses other than by sale of the property. Thus, the chancellor articulated specific reasons for finding that it would serve the best interest of all parties to partition the property by sale, and there is no manifest error. Cathey also argues that the chancellor erred in approving the contract of sale to McPhail, because the land should have been offered at a public auction rather than by a private sale. The chancellor found that the contract between the heirs and McPhail was in excess of any appraised value before the chancery court. The chancery court ordered that any proportionate values that could not be tendered directly to unknown or unlocated persons should be tendered to the clerk of court. There was no error with the chancery court’s partition and approval of the contract of sale to McPhail. |
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