Daily Development for Friday, March 28, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

COTENANCIES; PARTITION; PARTIAL PARTITION:
Chancellor does not have power to partite only a portion of subject
property and order that remaining portion continue to be held as tenants
in common because of sentimental attachment.  Mobley v. Mobley, 827
So.2d 714 (Miss.App. 2002).

Mobley v. Mobley, 827 So.2d 714 (Miss.App. 2002).

Five siblings inherited the family homestead from their mother. Most
sought physical partition as the first option.  One portion of the property
contained the old ancestral home, and there was wrangling as to who
could have it.  By the time of the actual partition, there were only three
siblings left as active participants in the physical division.  Others had
either transferred their interests to another sibling or had agreed to take
cash.  The trial court divided the property into three equal portions and a
fourth, small portion containing the ancestral home.  It awarded one of
the three large portions to each of the cotenants (one, apparently by
agreement, bought out the interest of the other as part of the division.)

But the trial court refused to partite the ancestral home, and left that
property in a cotenancy among the three remaining siblings.   The trial
court further issued an elaborate order concerning the use of this
cotenancy property.  Cotenants could visit, but could bring no more than
three persons, and could authorize no other independent visitors.  There
were restrictions on the keeping of animals, the leaving of personalty in
the home, changing or altering the home without prior consent of the
other cotenants, and various other restraints.

The appeals court summarily reversed.  It noted that there was no
demonstration that physical partition of the entire property was not
feasible.  Indeed, the parties had agreed upon the creation of three tracts.
They simply disagreed as to which one should receive the tract
containing the home.  The court stated that "mere sentimental attachment
does not render property incapable of partition in kind, nor does it take
precedence over the right of a cotenant to have his share set aside.  Full
partition was ordered.

Comment 1: Note that the appeals court left it to the trial court to decide
which of the three wrangling siblings got the ancestral home, and to
explain to the others why.

Comment 2: Notwithstanding the apparent coldness of the ruling, the
editor wholeheartedly agrees.  Anyone who has spent much time with
families divide the spoils following the death of an ancestor knows that
emotional attachments of incredible strength tend to spring forth
concerning the most valuable items, and toward those things whose
possession may create the most irritation for the others in the group.  In
short, the emotions are often false and short lived.  Further, it is an
impossible task for the court to sort through decades of family
interraction to identify the validity of the claimed emotional attachment.
Better to leave the whole issue out of the court's decision making
process.  There is a limit to what courts can accomplish here.  Leave the
rest to the disputants to resolve another way.

Here, if the parties really could not agree on who got the ancestral home,
a better result from the editor's viewpoint would be simply to partition
by sale, selling the whole parcel to the highest bidder.

Readers are encouraged to respond to or criticize this posting.

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