Bailey v. Vaughn

• Decision Date: 10 October 1979
• Docket Number: No. 51467,51467
• Citation: 375 So.2d 1054
• Parties: Mrs. Zader Mae BAILEY v. Opal Ruth VAUGHN, by and through her Conservator, Buster Vaughn.
• Court: Mississippi Supreme Court

Page 1054

375 So.2d 1054

Mrs. Zader Mae BAILEY v. Opal Ruth VAUGHN, by and through her Conservator, Buster Vaughn.

No. 51467.

Supreme Court of Mississippi.

Oct. 10, 1979.

Steighner & Colom, Donald J. Steighner, Columbus, for appellant.

Butler & Butler, Jan R. Butler, Eupora, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

WALKER, Justice, for the Court:

The appellee, Opal Ruth Bailey Vaughn, daughter of deceased R. E. L. Bailey, by and through her conservator, Buster Vaughn, her husband, instituted this suit in the Chancery Court of Webster County, Mississippi, against Mrs. Zader Mae Bailey (wife of deceased) and her children as a bill for, Inter alia, partition of 170 acres of land.

The court was of the opinion that the 170-acre tract (Tract I) of land was subject to partition and specifically stated:

The Court was not satisfied that the land was incapable of division in kind, and it is the order of the Court that three Special Commissioners be appointed by virtue of Section 11-21-15, being three freeholders, not related to the parties by consanguinity or affinity, to make partition in kind, according to this decree. These Special Commissioners have permission to cause a survey of the land to be made if they deem necessary.

The Court would prefer that the parties hereto suggest to it the names of three freeholders who may be appointed to so partite the land. If, after said commissioners have inspected the land, they are of the opinion that the same may not be partited in kind, they may so file their report for a sale and division of proceeds. The Court would desire that said commissioners report back their finding to this Court at the next regular term in September.

The commissioners appointed by the chancellor, with the agreement of counsel, reported back to the court on December 9, 1977, and stated in part as follows:

We went on this property and personally inspected it by walking over the entire 170 acres of land and found that the acreage South of the road, being approximately 60 acres, is cut over, that the acreage North of the road is mostly Hardwood of poor grade interspersed with pine, with better grade pine located in approximately 20 acres in the Northeastern most part of this property, that the terrain over the entire property is very rugged, which we estimate to be of the fair market value of $250.00 per acre for the entire 170 acres. We found a small portion borders on Miss. State Highway 15 and about 11/4 of a mile along a county gravel road. We do not recommend this land for partition in kind for to do so would necessitate 9 or more surveys at approximate average cost of $300.00 per survey and in addition it would necessitate 9 more appraisals at an approximate cost of from $200.00 to $500.00 per parcel.

It is our better judgment that this land is not susceptible to partition in kind. It is not conducive of being sold for residential lots and as a whole, it is not suitable for farming, it is suited only for growing timber.

Your Commissioners respectfully show that they served as Commissioners, and are entitled to be compensated for their services of five hours on October 29, 1977 and five hours on November 5, 1977.

Based upon the commissioners' report, the court entered its second opinion covering this parcel of land and specifically stated, on the fourteenth day of June, 1978 that:

Because of the number of interests in and to said property as well as the findings of the Commissioners, said property is not susceptible of being partited in kind and that a sale of the property for a division of the proceeds would better serve the interests of all parties hereto.

It was then ordered, adjudged and decreed:

That said land be sold for a division of the proceeds, after deducting all fees and expenses, including Court costs, among the parties in interest as provided for in a decree previously entered this date.

It was ordered that said special commissioner, being J. D. Robertson, the Chancery Clerk of Webster County, be appointed the special commissioner and the title of the subject property was vested in him to make a sale of the land hereinbefore described for the division of the proceeds.

On September 13, 1978, as a final order in this cause, the chancellor, in her decree, stated that:

It appearing to the satisfaction of the Court that said J. D. Robertson as Special Commissioner made due publication of said sale and in all respects complied with the terms of said Decree, and that the land sold brought a fair and adequate price and at said sale Georgia Pacific Corporation appeared and became the highest bidder for the sum of $81,000.00 and said Georgia Pacific Corporation has paid the sum of $81,000.00 to said J. D. Robertson, Special Commissioner, and said J. D. Robertson as Special Commissioner, is now ready to execute and deliver his Deed of Conveyance to the purchaser, Georgia Pacific Corporation.

It is, therefore, ordered, adjudged and decreed that said sale made by J. D. Robertson, as Special Commissioner be and the same is hereby ratified and confirmed by this Court.

It is from that portion of the decree of the chancellor's finding that the land in question, 170 acres, was not subject to partition in kind and confirming the special commissioner's sale that appellant appeals.

The appellant complains that the chancellor erred in ordering partition by sale when there was not sufficient evidence in the record to indicate that partition by sale would be in the best interest of all parties or that partition in kind was impossible.

This Court, in addressing the above issue, has stated many times that the law governing partition of property requires that the party seeking to have the sale of land must bring his case clearly within the provisions of Mississippi Code Annotated section 11-21-11 (1972). ¹

In commenting on the burden of proof, this Court in Cox v. Kyle, 75 Miss. 667, 23 So. 518 (1898), as reaffirmed by Burley v. Kuykendall, 349 So.2d 1036 (Miss.1977), stated:

The common law gave to joint owners of land a right to have a partition in kind, and the right of selling the land and of dividing the proceeds given by the statute, is an innovation upon the common law, and as it takes away from the owner the right to keep his freehold in kind, it must be strictly pursued, and it must appear from the record that an equal division cannot be made, or that a sale of the land will better promote the interest of all parties than a partition in kind. (349 So.2d at 1037).

In Burley, supra, citing Shorter v. Lesser, 98 Miss. 706, 54 So. 155 (1910), we stated affirmatively that:

(T)he law looks with favor upon a partition in kind, and with disfavor upon a sale of lands for partition, unless it appears that an equal division cannot be made in kind, or that a sale of the lands will better promote the interest of all parties than a partition in kind. Unless these conditions are fully met, the court has not right to divest a landowner (co-tenant) of his title, over his protest, and order the sale of same. The party seeking to have the sale of the land must bring this case clearly within this statutory provision. He must show conclusively...