Anderson v. Anderson
| Decision Date | 18 April 1989 |
| Docket Number | No. 23053,23053 |
| Citation | 299 S.C. 110,382 S.E.2d 897 |
| Court | South Carolina Supreme Court |
| Parties | Terry P. ANDERSON and Charles Phillip Anderson, Appellants, v. Reginald A. ANDERSON, Respondent. . Heard |
Allen C. Pate, Florence, for respondent.
This action was brought in the circuit court by two brothers against a third for partition by sale of real property inherited by the three from their mother and for the settlement of various claims against their father's estate. The lower court ordered an in kind partition of the real property and decided the various estate claims. We reverse, dismissing in part and remanding in part.
Terry P. Anderson, Charles P. Anderson (Plaintiffs) and Reginald A. Anderson (Defendant) are the children of Kate J. (Mother) and Charles A. Anderson (Father). Mother died testate April 13, 1984, leaving a life estate in 100 acres of real property in Darlington County to Father and the remainder to her three sons, divided one-half to Terry and one-fourth each to Charles and Reginald. Father died June 19, 1986. It is uncontroverted that two tracts of 5 and 4 acres, respectively, were deeded to Terry and excepted from the 100 acres, leaving approximately 91 acres as the subject of this action.
From 1955 to 1972, Father and Reginald operated a dairy farm on a portion of the subject property as a partnership. In 1972, Father retired, and Reginald continued to operate the dairy business alone, from 1972 to 1977 as a sole proprietorship and from 1977 to the present as a corporation. Barns, sheds and pastures, which are necessary to maintain the business as a going concern, are located on the portion of the property where the dairy farm is located. Reginald purchased additional property adjacent to the dairy farm for his home.
Terry and Charles brought this action for partition of the property requesting a judicial sale of the entire tract with the proceeds of the sale to be distributed according to the parties' interest. Reginald answered, requesting an allotment of the property, which would represent his proportional ownership in the property and take into consideration substantial improvements he had made over the years to the property.
With respect to partition, the lower court ordered:
[T]he property be surveyed and divided so that the defendant will receive sufficient land to include the dairy barn and related structures on approximately twenty to twenty-five acres adjoining his house and other properties. Excluded from this portion of land will be the old family place to include approximately one acre with a reasonable right of ingress and egress. The remaining properties are to be granted to the plaintiffs in the proportions pursuant to the Will of Kate J. Anderson.
The lower court's Order required an in kind division of the property, but its Order made no findings as to the value of the property, in whole or in part, or of the various structures located thereon. Further, the Order provided no precise method for actually accomplishing the division. The lower court found that if the property were sold outright and the proceeds divided, Reginald would be entitled to a substantial amount for damages for the destruction of his business which would offset any amount plaintiffs would receive, however, the lower court made no finding as to the amount of these damages.
Plaintiffs appeal this portion of the Order, alleging the trial court erred in ordering an in kind partition without valuing the various portions of the property and in failing to set out a clear method for making the partition.
A partition action is an equitable action, heard by a judge alone and, as such, this Court on review may find facts in accordance with its view of the preponderance of the evidence. Ackerman v. Heard, 287 S.C. 626, 340 S.E.2d 560 (Ct.App.1986).
The court of common pleas has jurisdiction
to make partition in kind or by allotment to one or more of the parties upon their accounting to the other parties in interest for their respective shares or, in case partition in kind or by allotment cannot be fairly and impartially made and without injury to any of the parties in interest, by the sale of the property and the division of the proceeds according to the rights of the parties.
S.C.Code Ann. § 15-61-50.
This Court has previously recognized that partition in kind is favored when it can be fairly made without injury to the parties. Smith v. Pearson, 210 S.C. 524, 43 S.E.2d 479 (1947). This Court's decision in Few v. Few, 242 S.C. 433, 131 S.E.2d 248 (1963), which recognized that in kind partitions are appropriate only where they may be made fairly and impartially without injury to any of the parties, does not vary the statutory preference for in kind partition. Thus, the party seeking a partition by sale carries the burden of proof to show that partition in kind is not practicable or expedient. Smith v. Pearson, 43 S.E.2d at 482.
Recognizing this Court's authority to make a plenary review of the record, and further recognizing the proper allocation of the burdens of proof between the parties as discussed above, we are of the opinion the lower court's decision relating to an in kind partition, as opposed to a partition sale, must be remanded for retrial. While we regret having to further postpone the...
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