Myers v. Myers

• Decision Date: 04 April 1986
• Docket Number: No. 16816,16816
• Citation: Myers v. Myers, 342 S.E.2d 294, 176 W.Va. 326 (W. Va. 1986)
• Court: West Virginia Supreme Court
• Parties: Bobbie E. MYERS v. Lois C. MYERS.

Page 294

342 S.E.2d 294

176 W.Va. 326

Bobbie E. MYERS v. Lois C. MYERS.

No. 16816.

Supreme Court of Appeals of West Virginia.

April 4, 1986.

Syllabus by the Court

1. "By virtue of W.Va. Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale." Syl. pt. 3, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978).

2. "Inconvenience of partition as one of the circumstances authorizing such sale, does not contemplate physical impossibility of division, but the requirement is not satisfied by anything short of a real and substantial obstacle of some kind to division in kind, such as would make it injurious to the owners...." Syl. pt. 4, in part, Croston v. Male, 56 W.Va. 205, 49 S.E. 136, 107 Am.St.R. 918 (1904).

3. "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." Syl. pt. 2, Garlow v. Murphy, 111 W.Va. 611, 163 S.E. 436 (1932).

Hayes Webb, Furbee, Amos, Webb & Critchfield, Fairmont, E.G. Marshall, Marshall & St. Clair, Huntington, for appellant.

Robert K. Means, Huntington, for appellee.

PER CURIAM:

Lois C. Myers appeals from an order of the Circuit Court of Cabell County entered in a partition suit. The court found that two tracts of land owned by the appellant and her former husband were not susceptible to partition in kind and therefore ordered a sale. The sale was stayed pending the outcome of this appeal. The case is before us on the petition for appeal and the brief and argument of appellant's counsel. The appellee has not filed a brief or otherwise appeared before this Court.

I

Lois C. Myers, the appellant, and Bobbie E. Myers, the appellee, were divorced in December of 1981, after more than 32 years of marriage. During their marriage, the couple acquired two tracts of real estate, one in Cabell County and the other in Mason County.

The Cabell County property contains 5.2 acres and was for a two or three-year period, the locus of the marital residence. It is situated on the banks of the Ohio River and is subject to a flowage easement, in the name of the United States of America, which affects approximately two acres of the tract.

The Mason County property comprises six contiguous parcels comprising more than 800 acres in the aggregate. It stretches eastward from the Ohio River, with about 2800 feet of river frontage. Approximately one-third of the acreage is subject to flooding. There is a sand and gravel deposit and a 36 to 40 inch seam of Pittsburgh coal. The value and marketability of these minerals were not determined. The diverse terrain includes pasture land, steep hill land, woodland with potentially marketable timber, and scrub land which has been timbered.

After the divorce, the appellee instituted partition suits in Cabell and Mason Counties seeking to force a sale of the real estate. On the motion of the appellant, and with no objection by the appellee, the actions were consolidated in Cabell County. By her answer, the appellant opposed a sale. With specific regard to the Cabell County property, she admitted that it could not be partitioned in kind, but asserted that the property should be allotted to her because the tract was carved out of her family's estate. The appellant asserted that the Mason County property was susceptible to partition in kind.

At a hearing on the matter, both parties presented widely divergent opinions through their own testimony and the testimony of expert witnesses on the question of the value of the real estate. The trial judge made no finding with respect to the value of either the Mason County or the Cabell County property. However, the judge did find that a house situated on the Cabell County property had no value, and that a house on the Mason County property had a value of $25,000. The findings as to the value of these improvements were in accord with the appraisal figures given by the appellant's expert witness, real estate appraiser Morton Pilcher.

The appellant proposed a partition plan to the court, whereby the two properties would be treated as a unit, the Mason County property would be divided in half along a line running roughly west to east, and the Cabell County property would be added to the southern half of the Mason County property. In the opinion of the appellant's expert witness such a partition would leave both parties with property of equal value. The proposed division line would divide the Mason County property into two halves of equal value, not including any improvements. Pilcher believed that the value of the Cabell County property, including improvements, equalled the value of improvements on the northern half of the Mason County property. He therefore felt that the proposed plan would result in a fair and equal division of the property. The appellant also proposed that the appellee be given his choice of halves following partition, or, alternatively, that the appellee divide the property and the appellant be given first choice.

The trial judge concluded that neither tract, whether considered individually or together, could be conveniently partitioned in kind. The conclusion that the Cabell County property could not be partitioned in kind was uncontested. Diversity of terrain was given as the reason in support of the conclusion that the Mason County property was not susceptible to partition in kind.

The proposal of the appellant to treat all the property as a unit for the purpose of partition was expressly rejected on the ground that the appellee opposed it. The court believed that, while there existed no legal impediment to such a partition, it had no authority to impose a settlement on an objecting party.

Finally, the court imposed an equitable lien, in favor of the Guaranty National Bank on two tracts included in the Mason County estate. This land, acquired separately from the others, was purchased in 1979. The appellee obtained $21,000 on an unsecured note in his name only, placed the money in the parties' joint checking account, and then paid the purchase price with a check drawn on this account. The land was deeded to the parties as joint owners with the right of survivorship. The record shows that the note remains unpaid.

II

"In a partition suit, before there can be a sale, 'there must be an affirmative showing of the propriety of the sale.' Smith v. Greene, 76 W.Va. 276, , 85 S.E. 537, 538 [1915]." Starcher v. United Fuel Gas Co., 113 W.Va. 397, 400, 168 S.E. 383, 384 (1933).

The burden of proof is on the party seeking the sale:

By virtue of W.Va. Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of...