Garlow v. Murphy
| Decision Date | 01 March 1932 |
| Docket Number | 7078. |
| Citation | 163 S.E. 436,111 W.Va. 611 |
| Parties | GARLOW et al. v. MURPHY et al. |
| Court | West Virginia Supreme Court |
Submitted February 24, 1932.
Rehearing Denied April 4, 1932.
Syllabus by the Court.
Decree in partition suit determining realty was not susceptible of fair partition, but postponing sale until further order held appealable (Code 1931, 58-5-1).
To warrant sale, it must affirmatively appear that partition cannot be "conveniently" made, and that interests of cotenants will be promoted (Code 1923, c. 79, § 3).
Ordinary test of convenience in partition is whether any interest assigned will be materially less in value than interest undivided (Code 1923, c. 79, § 3).
In partition suit, arbitrary allotment cannot be exacted by one cotenant (Code 1923, c. 79, § 3).
Cotenant in partition suit is entitled to have share allotted to him next to adjoining land which he owns, if possible, without injury to interests of other cotenants (Code 1923, c. 79, § 3).
Evidence held insufficient to support decree denying partition in kind of realty producing oil and gas and underlaid with coal, on ground that interests of cotenants would be promoted by sale (Code 1923, c. 79, § 3).
1. In order to warrant a judicial sale of land held in cotenancy it must affirmatively appear that (1) partition "cannot be conveniently made" and (2) the interests of all the cotenants "will be promoted by sale of the entire subject." Code 1923, chapter 79, § 3.
2. An ordinary test of convenience in partition, under the statute is, Will any interest assigned be materially less in value than the interest undivided? If so, the tract should be sold if not, it should be partitioned.
3. An arbitrary allotment cannot be exacted by the cotenant. However, he is entitled to have his share allotted to him next to adjoining land which he may own, if this can be done without injury to the interests of his cotenants.
Appeal from Circuit Court, Monongalia County.
Partition suit by Mary M. Garlow and others against Michael G. Murphy and others. From the judgment rendered, the plaintiffs appeal.
Reversed and cause remanded, with directions.
Terence D. Stewart, of Morgantown, for appellants.
Cox & Cox, of Morgantown, for appellees.
HATCHER P.
This is a suit in which partition is sought of a tract of about 68 acres, hereinafter referred to as the Murphy tract. It produces oil and gas and is underlaid with three valuable seams of coal, of the following areas: The Pittsburgh seam, about 66 acres; the Sewickley seam, about 40 acres; and the Red Stone seam lying between the other two, exact acreage not given. The tract is owned as follows: Estelle C. Davis (grantee of plaintiff, Mary M. Garlow) 2/11, Edwin E. Murphy 1/11, Delia B. Hoskinson 1/11 of the oil and gas and 1/11 of the Pittsburgh seam only, Michael G. Murphy 7/11 of the oil and gas, 7/11 of the Pittsburgh seam, and 8/11 of the remainder of the tract. Mrs. Davis owns coal land adjoining the Murphy tract which is under lease, the terms of which give her land a present value of some $500 an acre. She has an agreement with her lessee to include also in the lease any allotment to her of the Murphy tract, if the allotment shall adjoin her land. So she asks for partition in kind, and that her share be laid off adjoining her property. Michael G. Murphy and Mrs. Hoskinson oppose partition, particularly that sought by Mrs. Davis, and desire a sale of the entire tract.
Three commissioners were appointed to report in re partition. Evidence was taken before them. Two commissioners reported that partition in kind could not be conveniently made among all the cotenants, or of the share of Mrs. Davis, and that the interests of the owners would be promoted by a sale. The third commissioner (a competent mining engineer) filed a minority report stating that, in his opinion, while the tract could not be conveniently divided among all the owners, the share of Mrs. Davis could be set off adjoining her land without prejudice to the other cotenants. He tendered a plan demonstrating his opinion. He was supported generally by five witnesses, three of whom were experienced civil and mining engineers. The court confirmed the majority report and decreed on December 15, 1930, that the tract was not susceptible of a fair partition, that the share of Mrs. Davis could not be fairly set off in kind, and that the interests of all the owners would be promoted by a sale. The decree further stated that, in view of the financial depression and of the failure of any of the parties to move for a decree of sale at that time, the sale was postponed until further order. Mrs. Davis appealed.
A primary contention of appellees is that the decree is not appealable because it does not direct a sale. The decree adjudicates the principles of the cause, leaving only "those measures which are necessary for the execution of the decree *** and which are properly to be regarded *** as founded on the decree itself." Directing a sale is one of those measures. The decree is therefore appealable under Code 1923, chapter 135, § 1 (Code 1931, 58-5-1). See Richmond v. Richmond, 62 W.Va. 206, 213, 217, 57 S.E. 736; Gillespie v. Bailey, 12 W.Va. 70, 80, 81, 29 Am.Rep. 445; Stevens v. McCormick, 90 Va. 735, 736, 738, 19 S.E. 742.
The law of partition has been stated repeatedly and consistently by this court; but it seems necessary to restate it every now and then "lest we forget." Under the common law, a cotenant had an absolute right of partition. A judicial sale of his interest now is permissible only by reason of the statute. Code 1923, chapter 79, § 3. He still has the right to partition, unless it affirmatively appears that partition "cannot be conveniently made." Even then a sale will not follow, unless it also appears that the interests of all the cotenants "will be promoted by a sale of the entire subject." McDonald v. Bennett, 108 W.Va 665, 152 S.E. 533, 536; Brockman v. Hargrove, 103 W.Va. 254, 137 S.E. 11; Morley v. Smith, 93 W.Va. 682, 118 S.E. 135; Loudin v. Cunningham, 82 W.Va. 453, 456, 457, 96 S.E. 59; Smith v. Greene, 76 W.Va. 276, 278, 279, 85 S.E. 537; Herold v. Craig, 59 W.Va. 353, 356, 53 S.E. 466; Croston v. Male, 56 W.Va. 205, 210, 212, 213, 49 S.E. 136, 137, 107 Am.St.Rep. 918. The word "conveniently," as used in the statute, does not have its usual significance, but means rather practicably and...
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