Daughtrey v. Daughtrey

• Decision Date: 07 August 1985
• Docket Number: No. 54906,54906
• Parties: Clista Merritt DAUGHTREY v. William Donald DAUGHTREY.
• Court: Mississippi Supreme Court

Page 598

474 So.2d 598

Clista Merritt DAUGHTREY v. William Donald DAUGHTREY.

No. 54906.

Supreme Court of Mississippi.

Aug. 7, 1985.

Elliott Andalman, Andalman, Adelman & Steiner, Hattiesburg, for appellant.

Anthony Sakalarios, Morris & Sakalarios, Hattiesburg, for appellee.

Before WALKER, P.J., and SULLIVAN and PRATHER, JJ.

PRATHER, Justice, for the Court:

This appeal in a partition of realty suit addresses in part the affirmative defense of hardship and fraudulent acquisition of titles. The judgment from the Chancery Court of Forrest County, Mississippi orders the partition by public sale of real property consisting of a lot and a house jointly owned by Clista Merritt Daughtrey, appellant/defendant, and William Donald Daughtrey, appellee/plaintiff. Preliminary to a hearing on the merits, counsel for Mr. Daughtrey made a motion to strike two affirmative defenses set forth in Mrs. Daughtrey's answer, which defenses were hardship and fraudulent acquisition of title and duress. The court sustained these motions to strike on the ground that as a matter of law hardship was not a proper defense to the right of partition and that any suit alleging undue influence or fraud was barred by the statute of limitations. At trial, the court denied the third affirmative defense set forth in Ms. Daughtrey's answer that in the event partition was granted, Ms. Daughtrey should be allowed to purchase Mr. Daughtrey's interest in said property under terms and conditions which she could afford. Ms. Daughtrey assigns the following as error on appeal:

(1) The decision of the chancellor to grant, without a hearing on the merits, the plaintiff's motion to strike the defendant's affirmative defense of hardship and oppression was reversible error;

(2) The decision of the chancellor to grant, without a hearing on the merits, the plaintiff's motion to strike the defendant's second affirmative defense, which defense challenged the plaintiff's title to the property in question, was reversible error;

(3) The decision of the chancellor to deny the defendant's third affirmative defense, which requested that the defendant be allowed to purchase the property from the plaintiff under terms and conditions which she could afford, was reversible error on the record before the court.

I.

Mr. and Mrs. Daughtrey were married in 1954 and lived in a house belonging solely to Mrs. Daughtrey. Mrs. Daughtrey alleged that in 1957, Mr. Daughtrey forced her to sell that home to purchase another piece of property in which he would have a one-half interest, by constantly badgering her and knocking her about until she consented to put his name on the deed. In 1964 they traded this property for the property at 300 Griffith Street, the property subject to this suit. The Daughtreys were divorced in 1979, and Mrs. Daughtrey was awarded exclusive use and possession of the property until their child was emancipated. The court specifically found that Mrs. Daughtrey was not entitled to any alimony and that the award of use and possession of the property was in the nature of child support until the minor child of the parties was emancipated, a condition which has occurred. Mrs. Daughtrey alleges she is in poor health, capable of only part-time work, with only $800 in her bank account, and unable financially to purchase her home at a public sale. A psychiatrist testified after one examination of Mrs. Daughtrey that she was suffering from a "very depressive reaction", that she was "schizophrenic," that "to force Mrs. Daughtrey to move would put her in danger because her adjustment is very fragile and that an increase in Mrs. Daughtrey's depression increases the potential for suicide." A cousin and employer of Mrs. Daughtrey testified that if Mrs. Daughtrey moved out of her home "she'd probably have her a nervous crackup or something".

The property in question consists of a four bedroom brick veneer home located on a 100 by 150 foot lot with a 16 by 32 swimming pool.

II.

Was it reversible error for the chancellor to grant Mrs. Daughtrey's motion to strike Mrs. Daughtrey's affirmative defense of hardship and oppression?

The statutes controlling partition are found in Miss.Code Ann. Sec. 11-21-1 et seq. Miss.Code Ann. Sec. 11-21-3 in pertinent portion provides:

Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated and Miss.Code Ann. Sec. 11-21-11, in pertinent part, provides:

If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests....

Therefore, this Court looks to these statutes and its decisions construing the same to resolve this issue. These parties being cotenants are permitted to seek a sale of their interests when incapable of partition in kind when the sale will promote the interests of all parties. An incumbrance will not defeat partition of realty. Doran v. Beale, 106 Miss. 305, 63 So. 647 (1913). However, an outstanding dower interest or homestead exempt property of a widow will prevent partition. Gilleylen v. Martin, 73 Miss. 695, 19 So. 482 (1896) (and citations therein as to outstanding unassigned dowers); Stevens v. Wilbourn, 88 Miss. 514, 41 So. 66 (1906) (as to homestead of a widow). However, a divorced wife may not partite the former marital home where the parties' property agreement gave exclusive use and control to the husband. Rushing v. Rushing, 414 So.2d 429 (Miss.1982); Weeks v. Weeks, 403 So.2d 148 (Miss.1981). The spouse to whom the exclusive use of the home is granted, however, is not defeated in seeking partition. Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977).

None of the above Mississippi decisions create in one owner the affirmative defense of hardship or oppression as relied upon by the appellant Mrs. Daughtrey. For her supporting legal authority, the appellant relies upon two Oklahoma cases.

In Hassell v. Workman, 260 P.2d 1081 (Okla.1953), the Oklahoma Supreme Court held that the district court is vested with judicial discretion to refuse to give effect to a partition right where it appears that continued joint ownership of the property will not be detrimental or intolerable but on the other hand, will work inequitable hardship or oppression upon the co-tenant opposing such action. Also, in Wolfe v. Stanford, 179 Okla. 27, 64 P.2d 335 (1937), the Oklahoma court said that "inability of a cotenant to purchase should not constitute a defense under ordinary circumstances." Id. at 338. The Wolfe case further stated that "a denial of the remedy for partition can only be justified in the most extreme cases and then only when an intolerable situation with reference to control and use of the property does not exist." Id. at 339.

However, as early as 1914 in Forest Product & Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279 (1914) this Court held that a partition is statutory and not dependent on common law or equity.

Additionally, this Court held in Garrett v. Colvin, 77 Miss. 408, 26 So. 963 (1899) that possession or the right of possession in tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make it. Id. at 964. See also Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949).

The trial court concluded that as a matter of law the defense of hardship is not available in the State of Mississippi. Having examined these sources, this Court concludes that the trial court was correct in so holding. Nor does this Court find error in striking the asserted defense preliminary to a hearing on the merits.

III.

Was it reversible error to strike Mrs. Daughtrey's second affirmative defense which challenged Mr. Daughtrey's title to the property, preliminary to a hearing on the merits?

The lower court concluded that as a matter of law Mrs. Daughtrey has been since the 14th day of November, 1964, charged with knowledge of Mr. Daughtrey's interest and that any attack on his interest was barred by the statute of limitations in Mississippi. Additionally, the court further held that any attack in the property was barred by litigation of their property interest in a divorce proceeding in 1979 when Mrs. Daughtrey asserted no challenge to the title of Mr. Daughtrey.

Miss.Code Ann. Sec. 15-1-7 (1972) establishes that the statute of limitations applicable to actions to recover land is ten years. The property subject to partition was purchased in November of 1964 and the right to bring the action accrued at that time.

Mrs. Daughtrey asserts that she was not aware that she was not entitled to permanent use of the property until 1980 and the statute of limitations should run from that point.

However, in Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960) this Court held that in a case of fraud, the cause of action accrues at the time at which "the fraud shall, or, with reasonable diligence might, have been first known or discovered." Id. at 438. See also Aultman v. Kelley, 236 Miss. 1, 109 So.2d 344 (1959). It is unreasonable to assert that with reasonable diligence Mrs. Daughtrey did not know of her husband's title after she claims duress in execution of the deed.

The property interests of the parties were subject to previous litigation, and at that time Mrs. Daughtrey swore that she and her husband owned a one-half interest in the property. Mr. Daughtrey contends that judicial estoppel is applicable citing Coral Drilling Inc. v. Bishop, ...