Lockhart v. Collins, et al.
| Docket Number: | 2010-CA-01705-SCT Linked Case(s): 2010-CA-01705-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-17-2011 Opinion Author: Pierce, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Partition of property - Section 11-21-1 - Section 93-1-23 - Homestead property - Standing - Tenancy in common - Partition sale - Section 11-21-11 Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Kitchens, Chandler and King, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-02-2010 Appealed from: Monroe County Chancery Court Judge: Jacqueline Mask Disposition: Dismissed a petition for partition by sale of real property. Case Number: CV2007-000462-JEM |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Betty Lockhart |
CARTER DOBBS, JR. |
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| Appellee: | Richard Collins, Peggy Collins, Bolin Hamilton and Orene Hamilton | MARTHA BOST STEGALL | ||
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 of property - Section 11-21-1 - Section 93-1-23 - Homestead property - Standing - Tenancy in common - Partition sale - Section 11-21-11 |
| Summary of the Facts: | J. C. and Betty Lockhart owned a life estate in an undivided one-fourth interest in 160 acres. After the death of J.C., Betty Lockhart filed a complaint to partition by public sale the land that she shared with her in-laws, Bolin and Orene Hamilton. The Hamiltons also own a life estate in the same property, and they maintain the property as their homestead. Additionally, Lockhart sued Richard and Peggy Collins, who have a future interest in the property as remaindermen. The trial court dismissed Lockhart’s petition, and Lockhart appeals. |
| Summary of Opinion Analysis: | Lockhart argues that the chancellor erred in ruling that section 11-21-1(2) acts to prevent partition, unless by written agreement, when the partition is not between spouses, but, rather, couples. In Mississippi, the right to partition is absolute with the exception of the limitation placed on homestead property. Section 93-1-23 prevents a forced partition of homestead property of a surviving spouse who is using and occupying the property. Otherwise, partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession may be made by judgment of the chancery court of that county in which the lands or some part thereof, are situated. A tenancy in common occurs when two or more persons, in equal or unequal undivided shares, have an equal right to possess the property. It is not essential to the right of partition that the cotenants shall have estates that are equal. The manner in which the partition is accomplished is determined by one’s right to possession. Because Lockhart has a life estate in a one-fourth undivided interest in the subject property, she has the right to use and possess the property for the duration of her life, as do the Hamiltons with regard to their life estate in an undivided three-fourths interest in the property. Accordingly, Lockhart had standing to bring the petition for partition. A plain reading of section 11-21-1 reveals that when property is owned by spouses, and those spouses maintain the property as their homestead, partition is available only by written agreement between the parties. In this case, the entire parcel of property was owned by the Hamiltons and Lockhart, not by spouses. Where the wife of a tenant in common owning an undivided interest in land, occupies the land as a homestead, the occupation of the property by her does not enlarge her interest therein as against her husband’s cotenants, but the land is at all times subject to partition by the cotenants. Here, the fact that the Hamiltons occupy part of the land as a homestead does not enlarge their three-fourth interest in the land against their cotenant, Lockhart’s one-fourths interest. Rather, the protections under the homestead statutes are respective to each cotenant’s interest in the property. Thus, the land is subject to partition by Lockhart, absent some statutory exception. Nevertheless, the chancellor found that, in the event a partition of the subject property should become available, a sale of the property in the first instance was not warranted under section 11-21-11. This statute requires that, before the court may order a sale in the first instance, it must find that a sale of the lands will better promote the interests of all parties than a partition in kind, or the court must be convinced that an equal division cannot be made. Lockhart bears the burden to prove that the statutory requisites for a partition sale are met. The record is devoid of any proof regarding either statutory requisite. Since the chancellor lacks the authority to decree a sale unless the statutory requisites are clearly met and a substantial reason exists for choosing partition by sale over partition in kind, there is no error. |
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