Anderson v. Anderson

• Decision Date: 24 October 1921
• Docket Number: 12505.
• Citation: 108 S.E. 907,27 Ga.App. 513
• Parties: ANDERSON v. ANDERSON.
• Court: Georgia Court of Appeals

108 S.E. 907

27 Ga.App. 513

ANDERSON v. ANDERSON.

No. 12505.

Court of Appeals of Georgia, Second Division

October 24, 1921

Syllabus by the Court.

In applications for partition of "lands and tenements in this state the party applying for the writ of partition shall give to the other parties concerned at least 20 days' notice of his intention to make application." No other process is necessary than this statutory notice in order to bring the respondent into court to meet the application. Civ Code 1910, § 5360; Cock v. Callaway, 141 Ga. 781, 82 S.E. 286.

In statutory procedure for partition of lands and tenements in this state, in so far as the application is concerned, it is only necessary that the "application shall be by petition, setting forth plainly and distinctly the facts and circumstances of the case, describing the premises to be partitioned, and defining the share and interest of each of the parties therein." Civ. Code 1910, § 5358. The petition in the instant case complies fully with these essentials, and the demurrers thereto were properly overruled.

"Whenever application is made for partition of lands and tenements, * * * and either of the parties in interest shall make it satisfactorily appear to the court that a fair and equitable division of the lands and tenements cannot be made by means of metes and bounds, * * * or that the value of the entire lands and tenements will be depreciated by the partition, * * * the court shall order a sale of such" premises. Civ Code 1910, §§ 5365, 5366. A petition, otherwise complying with the statutory requirements, which alleges that on account of improvements a fair and equitable division could not be made by means of metes and bounds, and that to do so would cause the value of the entire lands and tenements to depreciate, and therefore praying for a sale and division of the proceeds, constitutes in substance and effect a petition for the partition of lands and tenements. A partition of the proceeds of the sale of the lands and tenements is in all essential particulars a partition of the lands and tenements and it is immaterial whether the applicant prays for a partition by sale or a partition by metes and bounds. In an application in either form and with either prayer the issues are the same.

Testimony as to value of property is opinion evidence, and is entitled to weight in proportion to the intelligence, experience information, and character of the witness. Its probative value is entirely for the judgment and decision of the trior (whether judge or jury), who may form his own conclusion and rely upon his opinion, irrespective of the evidence of the witnesses, provided that in the facts submitted there is enough to enable the trior to form an opinion. On the question as to the value of lands and tenements, arising on the hearing of an application for partition either by a sale or by means of metes and bounds, when the physical topography and construction of the lands and tenements are in evidence along with opinions of the value of the premises as a whole or in division, the trial judge can form his own opinion, and order a sale or division by means of metes and bounds, as in his opinion will be to the best pecuniary interests of those concerned. Civ. Code 1910, § 5875; Baker v. Richmond City Mill Works, 105 Ga. 225, 31 S.E. 426; Mitchell v. State, 6 Ga.App. 558, 65 S.E. 326; Choice v. State, 31 Ga. 425.

On the hearing by the court of an application for partition of lands and tenements, either by sale or by metes and bounds, where only two parties owned the property, and...