Barden v. Pappas, Nos. 87-2093

• Court: Florida District Court of Appeals
• Writing for the Court: ORFINGER; SHARP, C.J., and COBB; PER CURIAM; SHARP
• Citation: 532 So.2d 707,13 Fla. L. Weekly 2038
• Decision Date: 01 September 1988
• Docket Number: 88-384,Nos. 87-2093
• Parties: 13 Fla. L. Weekly 2038, 13 Fla. L. Weekly 2445 Mary Ellen BARDEN, Appellant, v. Marguerite B. PAPPAS, et al., Appellees.

Page 707

532 So.2d 707 13 Fla. L. Weekly 2038, 13 Fla. L. Weekly 2445 Mary Ellen BARDEN, Appellant,
v.
Marguerite B. PAPPAS, et al., Appellees. Nos. 87-2093, 88-384. District Court of Appeal of Florida,
Fifth District. Sept. 1, 1988.
On Motion for Rehearing Nov. 3, 1988.

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William E. Ruffier of Sanders, McEwan, Mims & Martinez and Kenneth L. Mann and Christopher A. Detzel, Orlando, for appellant.

Charles Evans Davis of Fishback, Davis, Dominick & Bennett, Orlando, for appellees.

ORFINGER, Judge.

Appellant Mary Ellen Barden appeals in Case No. 87-2093 from a final judgment ordering partition. She also appeals in Case No. 88-384 from an order denying her motion to set aside the partition sale as being grossly inadequate and irregular. Both appeals have been consolidated. Because we reverse the judgment ordering partition, it is not necessary that we rule on the adequacy of the sale.

Louis Pappas, the owner of the homestead property in question, died survived by his widow, appellee Marguerite B. Pappas, and two adult children by a prior marriage, appellee Lewis J. Payton and appellant Barden. Pappas filed an action for partition, alleging that following her husband's death she held a life estate in the property and that Payton and Barden each held an undivided one-half interest in the remainder. Payton answered and admitted the allegations of the petition and concurred in the relief sought. His sister Barden, however, raised a number of affirmative defenses including the defense that partition is unavailable to an owner of a life estate against the owners of the remainder interest. Barden then filed a motion for judgment on the pleadings which was denied.

The case came on for trial, at the conclusion of which the court deferred ruling. Several weeks later, Pappas moved and was permitted to amend her pleadings and reopen the evidence to show that she had conveyed a one-half interest in her life estate to Payton and that Payton had conveyed to her a one-half interest in his undivided remainder estate. Deeds reflecting this were presented. The trial continued, resulting in a final judgment of partition, from which Barden appeals.

In Garcia-Tunon v. Garcia-Tunon, 472 So.2d 1378, 1379 (Fla. 2d DCA 1985), the court noted that:

Partition was originally developed by the English common law as a remedy available to coparceners. Later, the right was extended to joint tenants and tenants in common. Thereafter, partition became an equitable remedy under English law and has been so considered in the United States. See generally, 2A R. Powell, Powell on Real Property, § 289 (1981). The original purpose of partition was to permit cotenants to avoid the inconvenience or dissension arising from sharing joint possession of real estate. L. Simes & A. Smith, The Law of Future Interests § 1764 (2d ed. 1956).

Partition is now provided for and regulated by statute in almost every state. 4 G. Thompson, Thompson on Real Property, § 1822 (1979).

Chapter 64, Florida Statutes (1987) governs partition in this state and section 64.031 provides that "the action may be filed by one or more of several joint tenants,

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tenants in common, or coparceners, against their cotenants, coparceners, or others interested in the lands to be divided." As noted in Garcia-Tunon, this statute has been narrowly construed with our...