Cooley v. Cooley, 16694

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: STUKES; BAKER
• Citation: 73 S.E.2d 712,222 S.C. 513
• Parties: COOLEY et al. v. COOLEY.
• Docket Number: No. 16694,16694
• Decision Date: 15 December 1952

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73 S.E.2d 712 222 S.C. 513 COOLEY et al.
v.
COOLEY. No. 16694. Supreme Court of South Carolina. Dec. 15, 1952.

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[222 S.C. 514] Curran E. Cooley, Anderson, for appellant.

Watkins & Watkins, Anderson, for respondents.

STUKES, Justice.

The plaintiffs and defendants in this action have for more than thirty years owned as tenants in common a tract of 486 1/4 acres of land on the Savannah River in Anderson County. The appellant was the only defendant who answered the complaint for partition. His answer contended for partition in kind and alleged that there is upon the land a considerable amount of valuable timber; there is a proposed water power development for which the land will be required and early sale for partition would occasion loss to the defendant; he has received small sums from one or more other persons for the privilege of gathering hay from the bottom lands, for which he is ready and willing to account, and he has paid taxes for many years for which he is entitled to [222 S.C. 515] reimbursement; wherefore, the answering defendant asked judgment that the complaint be dismissed, that any partition be by division in kind, failing which the sale should be delayed until the timber and water rights can be sold for a reasonable price, that he be permitted to account for his receipts and be reimbursed for tax payments. The complaint was served about August 16, 1950, and the answer was dated September 29, 1950.

By order dated November 29, 1950, the matter was referred to the Judge of Probate as special referee to take the testimony and report his findings of fact, which he did. Reference was held on April 13, 1951, at which the plaintiffs testified to the effect that title to the land descended from their and the defendants' father who died in 1901. A sister died in infancy leaving her mother, her sister and brothers as her sole heirs at law; and a brother died testate, whose will was admitted in evidence. The land has not been cultivated for many years and the value lies in the timber which is scattered so that good timber is on portions of the land and on other portions there is little or none. An additional witness for plaintiffs was a farmer and real estate dealer who had inspected the land, having been taken over it by a neighbor, and he corroborated the evidence given by the plaintiffs that the land cannot be divided in kind without injury to the owners whose respective interests are: one, an undivided 5/60th and the other five, 11/60ths each; and because of the remote location and the varying stands of timber.

The reference was adjourned until April 19th or 20th (the record is in conflict) and the defendant who has appealed then testified. He said that he had paid certain taxes and collected some amounts for hay-cutting privileges, for which he would account; that the property can easily be divided in kind and he opposed early sale because of probability of a proposed dam which would flood the land, for which reason he advocated the present sale only of the timber. He had received varying offers for the timber. On [222 S.C. 516] cross-examination the witness said that he had not paid taxes for the past three or four years, but did prior thereto and has the receipts and list of his collections. When asked whether the land involved in the action is the only land that the parties to the action own in common he answered, subject to his objection, that as far as he knows, it is.

One of the plaintiffs was recalled in reply and testified that he had paid the taxes from 1942 to 1946, inclusive, and that the 1948 taxes were paid by the other plaintiff who had collected for some oak timber which had been cut by mistake and paid for by another--$114. This plaintiff-witness also said that he had been trying for about ten years to arrange a division of the property, which appellant had opposed and the

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latter would not agree to sale even of the timber, for which the witness had...