Hale v. Thacker

• Decision Date: 10 December 1940
• Docket Number: 8766.
• Citation: 12 S.E.2d 524,122 W.Va. 648
• Parties: HALE v. THACKER.
• Court: West Virginia Supreme Court

12 S.E.2d 524

122 W.Va. 648

HALE v. THACKER.

No. 8766.

Supreme Court of Appeals of West Virginia.

December 10, 1940

Daugherty & Daugherty, of Huntington, and Fisher F. Scaggs, of Wayne, for appellant.

W Earl Burgess, of Wayne, for appellee.

FOX Judge.

The appellant, Mertie Hale, and the appellee, Reuben Thacker, are the joint owners of a tract of 113 acres of land in Wayne County, inherited from their brother, John Thacker. Various matters relating to the rents and profits of the land in question were involved in the court below, but the question here is limited to the legality of the court's decree providing for sale of the land and division of the proceeds thereof, rather than its partition in kind.

The decree of the court below directed a sale of the land and a division of the proceeds thereof equally between the owners. This decree was entered upon the report of commissioners appointed to make partition, the pertinent provisions of which report are as follows:

"We went upon the lands described in said cause as 113 acres of which John Thacker died seized; and after viewing said land and taking into consideration the kind of land, its present condition, together with its location being in a rural section; we are of opinion that the parties in said cause would be best served by selling said land as a whole, for cash in hand.

"We therefore recommend that the said land be sold at public auction, and the proceeds divided between the plaintiff and defendant, in said cause, according to their respective rights and interest therein."

There were no exceptions to this report, and the appellant, for the first time, and in this court, contends that it furnishes insufficient grounds for the sale of said land, and that her share thereof should have been set aside and decreed to her in kind.

At common law, the owner of an interest in land was always entitled to have his share therein decreed to him in kind. Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482. The Virginia Code of 1849 first contained the provision that where land could not be conveniently partitioned, a sale thereof could, under certain circumstances, be made. The same general provision now appears in Code, 37-4-3, and governs the case at

bar. The exact wording of the statute is: "*** In any case in which partition cannot be conveniently made, if the interests of one or more of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue and the interests of the other persons so entitled will not be prejudiced thereby, the court *** may order such sale * *."

According to the interpretation placed thereon by this court, a sale can only be decreed where partition in kind cannot be conveniently made, and the interests of the co-owners will be promoted by a sale. Bracken v Everett, 95 W.Va. 550, 121 S.E. 713. These showings must affirmatively appear from the record. Eagle Land Co. v. Jarrell, 94 W.Va. 564, 119 S.E. 556; McDonald v. Bennett, 108 W.Va. 665, 152 S.E. 533; Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436. Being in derogation of the common law, the statutory provision must be strictly construed, and the interpretation given the statute, as noted above, has long been followed by our decisions. Casto v. Kintzel, 27 W.Va. 750; Roberts v. Coleman, supra; Stewart v. Tennant, 52 W.Va. 559, 44 S.E. 223; Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 Am. St.Rep. 918; Herold v. Craig, 59 W.Va. 353, 53 S.E. 466; Smith v. Greene, 76 W.Va. 276, 85 S.E. 537; Garlow v. Murphy, supra.

Tested by this statement of the law, the record falls far short of a showing which justifies a sale of the land in question. The decree is based solely on the report of the commissioners and that report does not state that partition in kind cannot be conveniently made, and ordinarily there would be no practical obstacle to the partition of a tract of 113 acres...