Shaw v. Shaw, 89-CA-32

• Citation: 603 So.2d 287
• Decision Date: 03 June 1992
• Docket Number: No. 89-CA-32,89-CA-32
• Parties: Eretta J. SHAW v. Hildon SHAW.
• Court: Mississippi Supreme Court

Page 287

603 So.2d 287

Eretta J. SHAW v. Hildon SHAW.

No. 89-CA-32.

Supreme Court of Mississippi.

June 3, 1992.

Jack Parsons, Parsons & Taylor, Wiggins, for appellant.

Lucien M. Gex, Jr., Waveland, for appellee.

Before HAWKINS, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

On February 10, 1988, Hildon Shaw ("Hildon") brought suit in the Chancery Court of Stone County seeking the partition of a parcel of real property which he held jointly with Eretta Shaw ("Eretta"). Following a hearing on March 26, 1988, the chancellor decreed a partition by sale and appointed a special commissioner to conduct the sale. The sale occurred on September 2, 1988. Eretta appeals on three alternative grounds: (1) that the property should have been partited in kind rather than by sale; (2) that the warranty deed by which she and Hildon obtained their joint interests should be set aside; and (3) that the partition action should have been dismissed for failure to join all parties with an interest in the subject parcel. Specifically, she raises the following issues:

I. Can a lower court order a partition by sale of a parcel of land when the land is susceptible to partition in kind and it is not in the best interests of all the parties?

II. Can a lower court order a partition by sale of a parcel of land following agreement by both parties that the tract be partited in kind?

III. Is the existence of a fiduciary relationship grounds for setting aside a Warranty Deed, absolute in form and unambiguous on its face?

IV. Is the gross inadequacy of consideration grounds for cancellation of a Warranty Deed, absolute in form and unambiguous on its face?

V. Can a lower court consider extrinsic evidence when determining the validity VI. Can a lower court order a partition when all interested persons are not made parties to the suit?

of a deed, absolute in form and unambiguous on its face?

We reverse and remand on grounds that the chancellor erred in granting a partition by sale rather than a partition in kind.

FACTS

At some point during the late 1970's, Hildon employed Eretta as a bookkeeper and secretary. Over the course of the next decade, the two enjoyed what Eretta characterizes as an intimate sexual relationship and Hildon characterizes as a "father-daughter relationship." ¹ Through the years, Hildon allegedly purchased several gifts for Eretta including a bedroom suit, other furniture, rings, necklaces, a watch, and lawnmowers. He also made a down payment on Eretta's automobile in the amount of approximately $1,500.

Toward the end of 1986, Eretta's father, Lester Hester, deeded a 10.7 acre tract of land to Eretta and Hildon as joint tenants with full right of survivorship. Eretta testified that her father offered to sell her the land but that she did not have enough money to buy it. Hildon, according to Eretta, offered to buy the land for her and agreed to pay Lester $2,000 down and an additional $2,000 six months later. Eretta testified that Hildon paid her father $2,000 on the day of the transfer but never paid the balance. Eretta further stated that Hildon was made a joint tenant only so that he would acquire the land in the event of Eretta's death; that despite the language of the warranty deed, the transfer was actually intended as a gift from Lester Hester to Eretta. ² Eretta does not reconcile her testimony that Lester Hester sought to sell the property with her seemingly inconsistent contention that Lester Hester sought to give her the land.

Hildon expressed a different version of the circumstances surrounding the sale. He testified that Lester Hester sought to sell the tract to him and Eretta for $600 an acre. Hildon made a counteroffer of $400 per acre which Hester accepted. ³ Hildon paid $2,000 at the time of the sale and seems to imply that Eretta was to pay the balance.

At trial, Hester testified to corroborate Eretta's allegation that $2,000 of the purchase price was still outstanding but did not specify which of the parties owed him the alleged outstanding balance. He acknowledged that no promissory note or deed of trust were executed in connection with the transfer. Further, the warranty deed which purportedly passed title from Lester Hester to Eretta and Hildon states:

For and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid and other good and valuable considerations passing, the receipt and sufficiency all of which is hereby acknowledged, I, LESTER R. HESTER, ... do hereby grant, bargain, sell, convey and warrant subject to the exceptions hereinafter set out unto ERETTA SHAW and HILDON SHAW ... as joint tenants with full rights of survivorship and not as tenants in common....

(emphasis added).

The warranty deed was executed at the office of Eretta's counsel in the case sub judice. Although Eretta and Hildon accompanied Lester Hester to the signing, Lester testified that an attorney met with him privately and "asked me did I know what I was doing."

About a year after the transfer, the relationship between Eretta and Hildon, whatever its nature, turned sour. Hildon subsequently brought this suit seeking partition of the property.

Eretta's expert witness testified that the subject property was valued at $9,600 at Hildon purchased the property at the judicial sale for $6,000.

the time of the trial. He noted that the land was undeveloped and could be divided along a North-South line into two parcels of equal area, both with public road frontage to the South. He stated further that the land was forested with merchantable timber, the value of which was $1,200 for the east side and $400 for the west side. The eastern parcel is adjacent to the property on which Eretta resides. According to Hester's testimony, the land has been held by his family for at least three generations.

LAW

I. CAN A LOWER COURT ORDER A PARTITION BY SALE OF A PARCEL OF LAND WHEN THE LAND IS SUSCEPTIBLE TO PARTITION IN KIND AND IT IS NOT IN THE BEST INTERESTS OF ALL THE PARTIES?

II. CAN A LOWER COURT ORDER A PARTITION BY SALE OF A PARCEL OF LAND FOLLOWING AGREEMENT BY BOTH PARTIES THAT THE TRACT BE PARTITED IN KIND? ⁴

A chancellor has "considerable flexibility in dividing the property between the parties in a partition suit." Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973). As between partition by sale and partition in kind, however, the law strongly favors partition in kind. See Monaghan v. Wagner, 487 So.2d 815, 819-20 (Miss.1986) ("A partition in kind is always preferred and will be jealously guarded by this Court"). Miss.Code Ann. Sec. 11-21-11 (Supp.1991), permits a judicial partition by sale only where:

... 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.

As we recently held in Unknown Heirs v. Blair, 601 So.2d 848, 850-851 (1992):

Affirmative proof of at least one of these statutory requisites must affirmatively appear in the record in order for the court to decree a partition by sale. Vinson v. Johnson, 493 So.2d 947, 948 (Miss.1986); Monaghan, 487 So.2d at 820; Mathis [v. Quick, 271 So.2d 924,] 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919 (1963); Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908 (1949); Smith v. Stansel, 93 Miss. 69, 46 So. 538 (1908). Further, the chancellor has no authority to decree a sale unless the statutory requisites are "clearly" met and a "substantial reason" exists for choosing partition by sale over partition in kind. Shorter v. Lesser, 98 Miss. 706, 712, 54 So. 155 (1910); see Bailey v. Vaughn, 375 So.2d 1054, (Miss.1979) (party seeking sale of land must bring his case clearly within statute and show substantial reasons why partition in kind is impracticable or inadvisable); Burley v. Kuykendall, 349 So.2d 1036, 1037 (Miss.1977) (party seeking partition by sale "must show conclusively that an equal division cannot be made, or that a sale would be more beneficial, or less injurious, than an actual division" (emphasis added)).

In the case sub judice, the record reflects no proof that partition by sale would "better promote the interest of all parties than petition [sic] in kind." Miss.Code Ann. Sec. 11-21-11. Indeed, what little proof there is in this regard demonstrates that partition by sale would, if anything, detrimentally affect Eretta's interests: partition by sale would deprive Eretta of her interest in land immediately adjoining the property on which she lives.

The record also contains little proof that the property is not susceptible to partition in kind. Appellee Hildon's own expert testified that the parcel could be partited in kind. Further, the evidence shows that the parcel is roughly in the shape of a square We went on this property and personally inspected it by walking over the entire 170 acres of land and found that the acreage South of the road, being approximately 60 acres, is cut over, [and] that the acreage North of the road is mostly Hardwood of poor grade interspersed with pine, with better grade pine located in approximately 20 acres in the North-eastern most part of this property.... It is our better judgment that this land is not susceptible to partition in kind.

that it is uniformly undeveloped, and that a public road runs along its entire southern boundary. The only apparent difficulty encountered in physically dividing the property is that the merchantable timber is unevenly distributed. The east half has timber allegedly valued at $1,200 while timber on the west half is allegedly worth only about $400. This Court has ruled, however, that uneven distribution of timber is not a sufficient reason for requiring a partition by sale. In Bailey v. Vaughn, 375 So.2d 1054 (Miss.1979), the chancellor appointed a special commission to inspect a parcel of land and make a recommendation regarding an eight-way partition. The commissioners report stated the following:

Bailey, 375...