Barden v. Pappas

Decision Date01 September 1988
Docket Number88-384,Nos. 87-2093,s. 87-2093
Citation532 So.2d 707,13 Fla. L. Weekly 2038
Parties13 Fla. L. Weekly 2038, 13 Fla. L. Weekly 2445 Mary Ellen BARDEN, Appellant, v. Marguerite B. PAPPAS, et al., Appellees.
CourtFlorida District Court of Appeals

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 Garcia-Tunon considered the reverse situation and held that just as a remainderman cannot secure partition against another remainderman while the life estate is outstanding, neither can a life tenant seek partition against the remaindermen, because as between them, there is no joint interest. As explained by the court:

                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 supreme court holding in  Weed v. Knox, 157 Fla. 896, 27 So.2d 419 (1946) that a remainderman, having no estate in possession is not entitled to partition against the other remainderman where there is an outstanding life estate, because such a right is not specifically granted by statute.  The court in Weed explained that remaindermen with a life estate outstanding have no unity of possession or right of immediate possession and therefore are not joint tenants, tenants in common, or coparceners within the statute
                

Section 64.031 refers to joint ownership of lands to be partitioned. Here, appellant alleges that she is a life tenant in the entire real property. She does not allege any joint interest with any other person. The purpose of the statute is to provide for partition only among those who have joint interests.

As stated in 1 American Law of Property § 4.96 (1952):

Partition means a severance of interests which to some extent at least are concurrent. It refers to such types of co-ownerships as tenancies in common and joint tenancies. It is true that, if land is conveyed to A for life, remainder to B in fee, A and B have interests in the same land, and in a sense may be said to be co-owners. But it is not the sort of co-ownership to which partition has been applied. (emphasis added).

Id. at 1379.

Pappas contends here, as she did below, that as a result of the exchange of deeds, she and Payton are tenants in common within the meaning of the statute. 1 Barden, on the other hand, contends that they are not tenants in common because they do not hold several and distinct titles, but hold only so long as Pappas is alive.

Payton's undivided interest in the life estate gave him the essential element needed for a tenancy in common, viz: unity of present possession with Pappas. They are thus tenants in common of Pappas' life estate, but they are nevertheless not entitled to...

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4 cases
  • White v. Miami Electronics Center, Inc., 95-3564
    • United States
    • Court of Appeal of Florida (US)
    • July 31, 1996
    ...(1995); see Weed v. Knox, 157 Fla. 896, 27 So.2d 419 (1946); Serkissian v. Newman, 85 Fla. 388, 96 So. 378 (1923); Barden v. Pappas, 532 So.2d 707 (Fla. 5th DCA 1988), and (b) the effect of any partition would be inequitably to interfere with the enforcement of the agreement specifically ap......
  • Peters v. Robinson
    • United States
    • United States State Supreme Court of Delaware
    • December 21, 1993
    ...and "[t]here is no possibility of them ever being entitled concurrently to possession of the same piece of land." Barden v. Pappas, Fla.App., 532 So.2d 707, 709-10 (1988). 2 Consequently, the general rule at common law was that a life tenant could not maintain a partition proceeding against......
  • Estate of Hillyer, In re, 95-0281
    • United States
    • Court of Appeal of Florida (US)
    • December 20, 1995
    ...joint tenants with rights of survivorship or otherwise." A tenancy in common is considered jointly owned property. See Barden v. Pappas, 532 So.2d 707 (Fla. 5th DCA 1988) (partition means a severance of interests which to some extent at least are concurrent. It refers to such types of co-ow......
  • Barden v. Pappas, 89-1674
    • United States
    • Court of Appeal of Florida (US)
    • July 12, 1990
    ...Orlando, for appellees. HARRIS, Judge. The continuing dispute between the heirs of Louis Pappas is again before us. In Barden v. Pappas, 532 So.2d 707 (Fla. 5th DCA 1988), this court held that the widow holding a life estate could not partition property against the stepdaughter's remainder ......
2 firm's commentaries
  • Partition Of Real Property In Florida
    • United States
    • Mondaq United States
    • September 22, 2021
    ...may be partitioned. In addition, "[i]nterests which are merely successive, and not concurrent, are not partitionable." Barden v. Pappas, 532 So. 2d 707 (Fla. 5th DCA 1988). This means that a remainderman may not maintain an action for partition against the holder of a life estate (and vice ......
  • Partition Of Real Property In Florida
    • United States
    • Mondaq United States
    • September 22, 2021
    ...may be partitioned. In addition, "[i]nterests which are merely successive, and not concurrent, are not partitionable." Barden v. Pappas, 532 So. 2d 707 (Fla. 5th DCA 1988). This means that a remainderman may not maintain an action for partition against the holder of a life estate (and vice ......
2 books & journal articles
  • The impact of co-ownership on Florida homestead.
    • United States
    • Florida Bar Journal Vol. 86 No. 5, May 2012
    • May 1, 2012
    ..."that a partition action is not available to an owner of a life estate seeking to partition against remaindermen"); Barden v. Pappas, 532 So. 2d 707, 709-10 (Fla. 5th D.C.A. 1988) (held that the "life tenant(s) may not partition the remainder," and explained that remaindermen "are not joint......
  • The new homestead trap: surviving spouses are trapped by life estates they no longer want and can no longer afford.
    • United States
    • Florida Bar Journal Vol. 81 No. 6, June 2007
    • June 1, 2007
    ...(5) Fla. Stat. [section] 738.801(2). (6) Garcia-Tunon v. Garcia-Tunon, 472 So. 2d 1378 (Fla. 2d D.C.A. 1985); Barden v. Pappas, 532 So. 2d 707 (Fla. 5th D.C.A. Jeffrey A. Baskies is a partner in the Ft. Lauderdale office of Ruden McClosky. He is a graduate of Trinity College and Harvard Law......

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