Brockman v. Hargrove

• Decision Date: 22 February 1927
• Docket Number: 5758.
• Citation: 137 S.E. 11,103 W.Va. 254
• Parties: BROCKMAN et al. v. HARGROVE et al.
• Court: West Virginia Supreme Court

137 S.E. 11

103 W.Va. 254

BROCKMAN et al. v. HARGROVE et al.

No. 5758.

Supreme Court of Appeals of West Virginia.

February 22, 1927

Submitted February 15, 1927.

Syllabus by the Court.

To justify a sale of real property in a partition suit, it must affirmatively appear that the land is not susceptible of equitable partition, and that the interests of all the cotenants will be promoted by the sale.

In a partition suit, if two or more of the parties so elect, they may have their shares laid off together, when partition can be conveniently made in that way.

Appeal from Circuit Court, Raleigh County.

Suit by S. A. Brockman and others against H. C Hargrove and another for partition. From a decree ordering a sale, plaintiffs appeal. Reversed and remanded.

Brown W. Payne, of Beckley, for appellants.

Hugh A Dunn and J. S. Butts, both of Beckley, for appellees.

MILLER J.

In this suit for partition of a city lot, the plaintiffs, S. A Brockman, H. F. Payne, and Brown W. Payne, owners of a three-fifths undivided interest in the property, by their bill allege that they believe it can be divided among the five owners therof, but in the event it cannot, they pray that their interests be thrown together and allotted to them the balance sold and the proceeds divided.

By their answer the defendants, H. C. Hargrove and Clarence Green, deny that the land is susceptible of partition in kind, and allege that such a division would greatly impair the value of the property, by making the share of each too small for sale or separate use; and they pray for a sale of all the property and a division of the proceeds among the five owners.

Upon the pleadings and depositions filed by the parties, and the report of the commissioner appointed to ascertain the value of the property, the circuit court found that it could not be partitioned in kind without material injury and damage to the whole thereof, and ordered a sale of the whole lot. From this decree the plaintiffs have appealed, claiming that they are entitled to have their three-fifths of the lot laid off and assigned to them. The question presented to us is whether the facts presented justified the circuit court in ordering a sale of the property in question. Under the common law courts of equity had jurisdiction to partition real property in kind, but not to sell the property on the petition of one or more of the owners. Section 3 of chapter 79 of the Code provides that in a case where partition cannot be conveniently made--

"if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, *** may order such sale, or such sale and allotment, and make distribution of the proceeds of sale, according to the respective rights of those entitled."

Commenting on this statute in Roberts v. Coleman, 37 W.Va. 143, 157, 16 S.E. 482, Judge Brannon says:

"Now, remembering that the common law gave right to have partition in kind, and this statute being an innovation upon the common law, and taking away from the owner the right to keep his freehold in kind to justify a sale in any case, it must come within the statute, and it must appear in some way by the record both that partition cannot be conveniently made, and that the interests of the owners will be promoted by sale. Such is the letter of the statute. I think so, as did Judge Staples in Zirkle v. McCue, 26 Grat. [ 67 Va.] 532."

In Herold v. Craig, 59 W.Va. 353, 53 S.E. 466, it was held:

"A sale of real estate in a partition suit cannot be decreed, unless it affirmatively appears in the record that partition cannot be conveniently made and that the interests of the parties entitled to such real estate will be promoted by a sale thereof."

The rule enunciated and applied in these cases has been reiterated and followed in a number of later cases. Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 Am. St. Rep. 918; Conrad v. Crouch, 68 W.Va. 378, 69 S.E. 888; Smith v. Greene, 76 W.Va. 276, 85 S.E. 537; Loudin v. Cunningham, 82 W.Va. 453, 96 S.E. 59; Hogan v. Ward, 87 W.Va. 682, 106 S.E. 232, and in a number of other cases cited in the opinions therein.

From the evidence filed in the cause, it appears that the five parties to this proceeding, the plaintiffs and defendants, purchased the lot in question, fronting sixty feet on one of the principal business streets of the city of Beckley, for the purpose of erecting thereon a business building; that later, after plans for the structure had been prepared and approved, the defendant Hargrove, becoming dissatisfied, or for some reason, refused to proceed with the building program; and that afterwards the defendant Green also withdrew his support. The plaintiffs then proposed to retain thirty-six feet and assign to the others twenty-four feet, at either side of the lot they might choose. This proposition seems to have been at first agreed to, but later the defendants refused to carry out the division in that manner.

There is no question that in so far as the physical features of the lot are concerned, it could be readily divided into five lots of equal value. each with a frontage of...