Pride v. Pride
| Docket Number: | 2009-CA-00165-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-05-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Real property - Partition by sale - Section 11-21-11 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts and Carlton, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 12-16-2008 Appealed from: Panola County Chancery Court Judge: Percy L. Lynchard, Jr. Disposition: Ordered Sale of One Acre of Land Case Number: B-05-05-210 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rivers Pride, Ethel Butler, C.W. Pride, Robert Pride, Hester Burnette, Virgie Deloney, Herman Pride and Jimmie Elaine Ellis |
KENNETH E. STOCKTON |
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| Appellee: | Daniel Pride and William Pride | RANDOLPH WALKER |
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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 by sale - Section 11-21-11 |
| Summary of the Facts: | In May 2005, Rivers Pride, Robert Pride, C.W. Pride, Herman Pride, Ethel Butler, Hester Burnette, Virgie Deloney, Terry Ellis, and Jimmie Elaine Ellis filed a complaint against their brothers, William Pride and Daniel Pride. Rivers asked for a “partition in kind or by sale” of approximately 150 acres, including a home, inherited from W.E. Pride and Savannah Pride. William filed a counterclaim, also seeking a partition. The record indicates Rivers wanted to divide the property equally, while William wanted to sell the entire 150 acres. The chancellor appointed a three-member commission to survey the property and determine if it could be divided equally. In September 2006, the commission submitted a report, recommending a partition in kind of the land into ten tracts, except for the one-acre homesite, which the commission recommended should be sold. William objected to the commissioners’ report, arguing all the land should be sold. Rivers, however, agreed with the commissioners’ report. The chancery court entered an order adopting the commissioners’ report. The next day, the chancery court issued a notice of sale of the homesite. However, the sale never took place. William filed a motion for judgment notwithstanding the verdict, arguing there was insufficient evidence for a partition in kind. Rivers responded that William’s motion should be dismissed. The chancery court denied William’s motion. After the thirty-day notice-of-appeal deadline had expired, William filed a motion for an extension of time to appeal, which Rivers contested. Before the chancery court ruled on William’s motion for an extension, William filed two more motions: a motion for contempt for Rivers’s failure to return certain personal property as ordered by the December 19, 2006 order, and a motion to appoint a caretaker of the home, which had yet to be sold. The chancellor granted William a fourteen-day extension to appeal the denial of his motion for JNOV and the underlying order adopting the commissioners’ report. It denied his contempt motion, providing Rivers additional time to return William’s property. But it did not reach the motion to appoint a caretaker because at the hearing both parties informed the chancellor that they agreed to auction the house within sixty days. When the chancellor asked whether anyone objected to the sale, none of the parties spoke up. William filed a notice of appeal, and Rivers filed his own notice of appeal. The two appeals were consolidated. After being granted numerous extensions, William failed to timely file an appellant brief. William’s appeal was dismissed pursuant to M.R.A.P. 2(a)(2). Rivers’s appeal was unaffected. |
| Summary of Opinion Analysis: | Rivers argues the chancery court erred by not following the requirements of section 11-21-11 in its order of the sale of the homesite. The chancery court issued two orders regarding the sale of the homesite: the December 2006 order that determined the one-acre homesite should be partitioned by sale, rather than partitioned in kind like the rest of the acreage, and the December 2008 order that directed the previously determined sale should take place within sixty days to avoid the need to appoint a caretaker, resolving William’s March 2008 motion. It was in issuing the December 2006 order that the chancery court had to determine whether the circumstances met the prerequisites for partition by sale. Based on the dismissal of William’s appeal, the December 2006 order is no longer before the Court. Therefore, whether the prerequisites of section 11-21-11 existed prior to ordering a partition by sale in 2006 will not be considered. William’s arguments that the chancery court similarly erred in ordering a partition in kind of the 150 acres are aimed at resurrecting his dismissed appeal of the 2006 order and will also not be considered. While a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless the conditions of section 11-21-11 are fully met, Rivers made absolutely no protest. In his reply brief, Rivers concedes he agrees with decision to partition the homesite by sale. His argument against the 2008 order not only lacks merit, but it too is procedurally barred. Not only are chancellors vested with discretionary authority over whether to require an appraisal, but Rivers never raised the issue of appraisal in the chancery court. |
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