Loudin v. Cunningham

• Decision Date: 07 May 1918
• Docket Number: 3500.
• Citation: Loudin v. Cunningham, 82 W.Va. 453, 96 S.E. 59 (W. Va. 1918)
• Parties: LOUDIN ET AL. v. CUNNINGHAM ET AL.
• Court: West Virginia Supreme Court

96 S.E. 59

82 W.Va. 453

LOUDIN ET AL. v. CUNNINGHAM ET AL.

No. 3500.

Supreme Court of Appeals of West Virginia.

May 7, 1918

Submitted April 23, 1918.

Syllabus by the Court.

In order to justify a sale of land in a partition suit it must be shown: (1) That the land is not susceptible of equitable partition; and (2) that the interests of all the cotenants will be promoted by a sale and distribution of the proceeds.

The most usual method of ascertaining whether the land is susceptible of convenient partition is by the report of commissioners; but when their report simply states that the land is not susceptible of convenient and equitable partition, and mentions no facts justifying their conclusion it does not warrant a decree of sale.

The averment in a bill for partition that the land is not "susceptible of convenient or equitable partition among those entitled thereto" is sufficiently denied by an answer averring that "the land in question is susceptible of partition in kind among the various owners thereof," and casts the burden upon plaintiff to prove the existence of such facts and conditions as render a sale necessary.

A cotenant is entitled to have his share allotted to him out of that part of the land adjoining his other lands only when it can be done without injury to the interests of his cotenants if it cannot be done, and equitable partition of the land can otherwise be made, it is error to decree a sale.

Appeal from Circuit Court, Wetzel County.

Suit for partition by Mary W. Loudin and others against A. A Cunningham and others. Decree for plaintiffs, and defendants A. A. Cunningham and others appeal from a portion thereof. Reversed and remanded.

Thos H. Cornett, of New Martinsville, for appellants.

Cox & Baker, of Morgantown, and L. J. Forman, of Petersburg, for appellees.

WILLIAMS, J.

This appeal, taken by A. A. and E. E. Cunningham, brings up for review a decree entered by the circuit court of Wetzel county for the sale of a tract of land in a proceeding to have it partitioned among the joint owners thereof. There had been a severance of the title, and the coal, the oil, and gas, and the surface of the land, were owned in different proportions. The several interests were decreed to be sold, but complaint is made of so much only of the decree as directs a sale of the surface. Appellants insist the land is capable of equitable partition, and therefore it was error to decree a sale. The bill was filed by Mary W. Loudin and others against A. A. Cunningham, E. E. Cunningham, and others, and the tract is described as containing 63 acres and 103 poles. The parties are jointly interested in the surface in the following proportions: Mary Loudin, five-twentieths; Edna Whisler, one-twentieth; Esther Whisler Foreman one-twentieth; Ella Marple, one-twentieth; and A. A. and E. E. Cunningham, together, twelve-twentieths. F. F. Morgan, a surveyor, C. E. Clovis, and S. J. Talkington were appointed commissioners to go upon the land and make partition thereof among those entitled thereto, if they should find it susceptible of convenient and equitable partition, and if not susceptible of such partition, then they were directed to ascertain whether their interests would be promoted by a sale, and, in either event, to report their proceedings to court. The commissioners went upon the land on the 14th day of November, 1916, and examined it and reported that it was not susceptible of convenient and equitable partition among the parties, and "that the interests of a majority of those entitled thereto would be promoted by a sale thereof." The tract consisted of two parts, adjoining each other for a short distance at the southeast corner of one piece and the northwest corner of the other, and separated by a county road extending the full distance along the northern boundary of the southern piece. The southern piece is much the smaller one, but much superior to the other for agricultural purposes. The Cunninghams own other land adjoining the southern piece on the south, and the commissioners were directed, in the event the land was susceptible of partition, to assign to them their twelve-twentieths of the 63 acres and 103 poles out of the land which adjoined their other lands, provided that could be done without injury or prejudice to the interests of the other cotenants.

The reason assigned by the commissioners for reporting the land not susceptible of equitable partition is that to assign to the Cunninghams their share in the entire tract out of that part of it which lies next to their own land would give them nearly all the fertile part of the 63 acres and 103 poles and render the balance of it almost valueless. Counsel for appellants insists that this is only the statement of their own conclusion which does not necessarily follow from any facts that are made to appear, and therefore did not justify the decree of sale. In reply to this contention counsel for appellees insists that the allegation in the bill that the tract is not susceptible of convenient or equitable partition among those entitled thereto, and that their interests will be promoted and none of their rights violated by a sale thereof, is not denied in the answer of the Cunninghams, and hence stands as confessed, and no proof of the averment was necessary in order to justify the decree of sale. ...