        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CA-00257-COA

JEWEL LEAN KOHNKE                                                          APPELLANT

v.

BERTHA JEAN TATE                                                             APPELLEE

DATE OF JUDGMENT:                         01/18/2017
TRIAL JUDGE:                              HON. DEBORAH J. GAMBRELL
COURT FROM WHICH APPEALED:                MARION COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  LARRY STAMPS
                                          ANITA M. STAMPS
ATTORNEY FOR APPELLEE:                    R. ANDREW FOXWORTH
NATURE OF THE CASE:                       CIVIL - REAL PROPERTY
DISPOSITION:                              AFFIRMED - 10/09/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Bertha Tate filed a complaint for partition of property in the Marion County Chancery

Court against Jewel Kohnke and other defendants who are cotenants of the property but not

appellants in this case. The property at issue, approximately thirty-nine acres, was devised

to several family members in the will of Annie Boone, who passed away in 2010. The

chancery court approved a survey, ordered the partition of three separate parcels, and

adjudicated the owners of the parcels. Kohnke appealed, claiming the partition of the

property was unfair because it was not in equal value to the rights of the property owners.

Finding no error, however, we affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.    On March 22, 2016, Tate filed her complaint seeking a partition of her portion of real

property1 that had been devised to her and other relatives under the last will and testament

of Annie Boone, who passed away in July 2010.2

¶3.    Annie had seven children, three of whom predeceased her but left children of their

own. In her will, Annie devised the subject property between her children or their

descendants, and her brother, Frank Holt, with the following ownership interests:

                Bertha Jean Tate.............................0.125 (or 1/8)

                Howard Boone...............................0.125 (or 1/8)

                Christeen Boone Owens.................0.125 (or 1/8)

                Jewel Lean Kohnke........................0.125 (or 1/8)

                Lonnie Mae McLeod......................0.125 (or 1/8)

                Annie Nell Boone3..........................0.125 (or 1/8)

                Frank W. Holt.................................0.125 (or 1/8)

                Jackie Boone Walton......................0.0625 (or 1/16)



       1
       The subject property is legally described as: “NE1/4 of the SE1/4 of Section 1,
Township 2 North, Range 18 West, Marion County, Mississippi” and is a total of 40.84
acres.
       2
         Neither the will nor the final judgment probating the will is a part of the record on
appeal, but the complaint included the interests of the beneficiaries, which are not in dispute.
Additionally, a home and surrounding one acre on the property was separately devised to
Kohnke and Christeen Owens and is not at issue in this action. This one acre was excluded
from the 40.84 section.
       3
           Annie Nell Boone is Annie’s granddaughter.

                                                     2
                Ricky Boone4..................................0.0625 (or 1/16)

Lonnie McLeod, one of Annie’s daughters, died intestate after her mother; therefore, her 1/8

ownership interest was divided among her five children, the McLeod Family, giving each

of those five individuals a 0.025 (1/40) ownership interest in the property. Additionally,

Frank Holt, Annie’s brother, died intestate after Annie’s death. He was not married at the

time of his death and had no children or surviving parents; however, he did have seven

siblings, all of whom predeceased him. Five of the seven siblings were survived by children,

which included Annie’s children. Accordingly, Holt’s 0.125 (1/8) ownership interest in the

property was divided into five equal parts, descending through intestate succession to the

descendants of Holt’s deceased siblings.5               Therefore, Annie’s children inherited an

additional 0.025 (1/40) ownership interest in the property from Holt’s 1/8 share, to be

divided equally among them.

¶4.    Christeen Boone Owens and the McLeod Family later joined Tate to have their

interest in the subject property partitioned from the larger parcel. The other cotenants,

including Kohnke, desired to continue as common owners of the remaining property. After

a hearing on August 29, 2016, the chancery court entered an agreed order on September 19,

2016, confirming title and partitioning the property. The order delineated the ownership

interests of the cotenants and ordered the property be partitioned in kind to give Tate, the


       4
           Jackie Walton and Ricky Boone are Annie’s grandchildren.
       5
           See Miss. Code Ann. § 91-1-3 (Rev. 2013).

                                                    3
McLeod Family, and Christeen Owens separate parcels of land equal in value to their

ownership interests. The order also added Holt’s 1/40 interest to Annie’s children or

descendants, stating the parties’ legal interest in the property was as follows:

              Bertha Jean Tate.............................0.1285714 (or 180/1400)6

              Howard Boone...............................0.1285714 (or 180/1400)

              Jewel Lean Kohnke........................0.1285714 (or 180/1400)

              Charley McLeod.............................0.0257143 (or 36/1400)

              Frank McLeod................................0.0257143 (or 36/1400)

              Jamie McLeod................................0.0257143 (or 36/1400)

              Joey McLeod..................................0.0257143 (or 36/1400)

              Johnny McLeod..............................0.0257143 (or 36/1400)

              Christeen Owens.............................0.1285714 (or 180/1400)

              Ricky Boone...................................0.0642857 (or 90/1400)

              Jackie Walton..................................0.0642857 (or 90/1400)

              Annie Nell Boon.............................0.1285714 (or 180/1400)

              Frank Holt’s Heirs at Law/
              Devisees Excluding
              Annie Boone’s Descendants...........0.10 (or 140/1400)

A final hearing was held on January 18, 2017, where the chancellor entered a final



       6
        This amount is the share received through Annie’s will, plus Uncle Holt’s share, or
.125 plus .0035714 equaling 0.1285714.

                                                 4
judgment, approving a survey and partitioning the three parcels. The judgment stated “the

requesting parties have agreed among themselves as to the division of the partited parcels.”

Each parcel contained 5.12 acres, with Tate owning Parcel #1, the McLeod family owning

Parcel #2, and Christeen Owens owning Parcel #3. The remaining property consisted of

25.48 acres. The judgment also allowed Howard Boone to continue to graze and water his

livestock from the small “catfish” pond on Owens’s parcel, as long as he lived or had the

need. Relatedly, she was prohibited from building a fence on her parcel, to which she

agreed.

                               STANDARD OF REVIEW

¶5.    For partition cases, “[a]n appellate court will only overturn a chancellor’s decision

. . . if it is determined that the chancellor committed manifest error.” Cathey v. McPhail &

Assocs. Inc., 989 So. 2d 494, 495 (¶3) (Miss. Ct. App. 2008). “[U]nless the chancellor was

manifestly wrong, clearly erroneous or applied an erroneous legal standard,” the reviewing

court will not overturn the chancellor’s findings when supported by substantial evidence.

Id.; accord Samples v. Davis, 904 So. 2d 1061, 1064 (¶9) (Miss. 2004).

                                      ARGUMENT

¶6.    Kohnke raises three issues: (1) the chancellor improperly and unfairly partitioned the

property based upon acreage rather than value, (2) there was a mathematical error in the

calculations used to determine the interests of the cotenants, and (3) the chancellor




                                             5
improperly accepted the deraignment of title without a hearing.7

       I.      Partition of Property

¶7.    Kohnke argues that the division of the three separate parcels of 5.12 acres was

improper and inequitable because the value of the parcels was unequal. She requests the

case be remanded to partition the property based upon value rather than acreage. Also, she

suggests on remand the chancellor make a more complete record of how the property was

distributed.

¶8.    “Partition is a statutory right in Mississippi” governed by Mississippi Code Annotated

sections 11-21-1 through -45 (Rev. 2004). Mosby v. Mosby, 962 So. 2d 119, 121 (¶8) (Miss.

Ct. App. 2007). Cotenants have an absolute right to partition property (with one statutory

exception not applicable here). Id. “A partition in kind, rather than a partition by sale, is the

preferred method of dividing property in Mississippi.” Cathey, 989 So. 2d at 495 (¶4).

“Any party in interest . . . may institute proceedings for the partition of lands . . .” in the

chancery court. Miss. Code Ann. § 11-21-5 (Rev. 2004).

¶9.    Kohnke claims the case must be remanded because the chancellor did not follow the

statutory requirements imposed on special commissioners who may, but are not required to,

be appointed by the chancellor in partition actions.8 Kohnke argues that the chancellor did


       7
        Kohnke has different counsel on appeal, and many of her arguments criticize her
counsel’s actions during the chancery court proceedings.
       8
        Kohnke admits that the chancery court was within its authority to order a partition
without appointing a special commissioner. See Miss. Code Ann. § 11-21-13 (Rev. 2004).

                                               6
not divide the property into shares “having regard to the situation, quantity, quality and

advantages of each part or share, so that they may be equal in value as nearly as may be, or

according to the respective rights of the parties.” See Miss. Code Ann. § 11-21-19 (Rev.

2004). Kohnke claims this statutory language for the special commissioner applies to the

chancellor. She further contends that there was no proof that an expert or the surveyor

considered the statutory language either. Finally, she maintains that the division of the

property was unfair because there was no evidence presented as to the value of the land.

¶10.   Kohnke’s reliance on section 11-21-19 is misplaced because it relates to the situation

where a special commissioner is appointed, unlike here, where neither party requested one.

Regardless of the inapplicability of the statute, however, Kohnke is basically arguing the

property was unfairly divided with unequal value according to the interest rights of the

cotenants. After examining the record, we cannot say that the chancellor’s ruling on the

survey and division of property was manifest error. Moreover, neither Kohnke nor her

attorney during the chancery court proceedings made any objections as to the method of

partition used (in kind), requested that a special commissioner be appointed, or requested

that an appraisal of the property’s value be made. Also, Kohnke did not request partition

based on value. It is well established that a chancellor cannot abuse her discretion in failing

to grant a request that was never made. Pride v. Pride, 60 So. 3d 208, 212 (¶15) (Miss. Ct.

App. 2011).

¶11.   Kohnke’s discontent appears to stem from the fact that there are three ponds on the


                                              7
property—two larger ponds on the large undivided tract, and one smaller pond on Christeen

Owens’s parcel. Kohnke states the chancery court unfairly “enriched” Tate by granting her

“an entire pond for her sole use and benefit to the exclusion of the other beneficiaries,” and

allowing Howard Boone to water his livestock from Owens’s pond. It is unclear from the

record which pond Kohnke is speaking of, because on the survey map, Tate does not have

a pond on her parcel and was not granted use of a pond, as Howard was. At the hearing, the

chancellor explained to Kohnke that the property distribution was fair because the majority

of cotenants, including Kohnke, had unfettered use and access to the two larger ponds on

the 25.28 acres of property. We cannot find error in this regard.

¶12.   Accommodations appear to have been made for the fair distribution of property

between the three partited owners and the remaining cotenants. As Tate notes, the survey

shows the three parcels are in the back of the property and do not front a public road; they

were located to ensure the remaining cotenants’ portion of the land remained contiguous and

intact. The house and surrounding one acre is on the undivided land. Boone was allowed

to run his livestock operation throughout the land with access to all three ponds. Easements

were granted for the three parcels to allow ingress and egress. Accordingly, there is

substantial evidence in the record to justify the chancellor’s division of the property.9 We

cannot say it was “unfair” to the remaining cotenants. This issue is without merit.



       9
        Kohnke complains that the record is sparse because the first two of the three
hearings were not transcribed, but we find the record sufficient.

                                              8
       II.    Interests of Cotenants

¶13.   Kohnke argues that the calculations used to determine the cotenants’ ownership

interests in the property were incorrect, and therefore the owners of the three partitioned

parcels received “too much acreage” for their ownership interests. She also claims there is

no proof to support the “per stirpes distribution” tendered to the chancery court by the

parties’ attorneys and it, too, is erroneous. Therefore, Kohnke suggests that even though

these issues were not raised below, she is entitled to plain error review.

¶14.   The September 19, 2016 agreed order delineated the ownership interests that each of

the heirs to Annie’s will were to receive. We cannot find error in their determination.

Annie’s will had nine beneficiaries; seven beneficiaries received 1/8 interest and two

beneficiaries received 1/16 interest each. However, the death of Annie’s brother Holt, who

held a 1/8 interest and died without a will, spouse, children, living siblings, or parents,

increased the ownership interests of all of Annie’s other beneficiaries. Holt’s 1/8 interest

was divided into five equal parts, or 1/40th of an interest, and descended to his five siblings

who had children, which included Annie. Therefore, Annie’s descendants (her living

children and the children of her deceased children) received an additional 1/40th interest in

the land, to be divided among them according to their proportionate share. Attorneys for

both parties before the chancery court clearly laid out the interests in both fractions and

decimal figures. After thoroughly reviewing them, we find no error in their calculation.

¶15.   Kohnke now criticizes the chancery court for allowing the attorneys to calculate the


                                              9
cotenants’ inherited ownership interests instead of appointing a special commissioner. She

also complains the calculations are incorrect, without elaboration, and there is no evidence

to support them. As stated earlier, Annie’s will is not a part of the record, but the complaint

explained the interests devised in the will, and at that time, and during the entire proceedings

in the chancery court, the calculations were not in dispute.

¶16.   At the hearing, Kohnke appeared to be concerned that some of Holt’s interest was not

being distributed to all of Annie’s descendants. However, all of Annie’s descendants,

including both Kohnke and Tate, inherited some of Holt’s interest. The calculations show

every descendant and devisee received their fair portion of the property according to Annie’s

will and the laws of intestate succession.

¶17.   Additionally, Kohnke argues the three separate parcels of 5.12 acres exceed the

vested interest of the owners receiving them. At the final hearing, Kohnke argued that the

division was unfair because there was insufficient total acreage to give the remaining

cotenants each 5.12 acres—the amount the partitioned owners received. Kohnke claims that

the property should be divided into eight parcels or 4.88 acres for the 1/8 interest owners and

2.4 acres for the two 1/16 interest owners. Under Kohnke’s calculations, the partited owners

are receiving 0.24 acres more than their interest allows. Kohnke suggests 4.88 acres as the

starting point for determining the “correct acreage” to which each beneficiary, or their heirs,

is entitled.

¶18.   Tate agrees that 4.88 acres is the “starting point” to determine the theoretical acreage


                                              10
for each cotenant. Tate correctly notes, though, that the subject property is not exactly forty

acres, but 40.84 acres according to the survey. Because the house and surrounding one-acre

of land were devised to Kohnke and Owens, the remaining total acreage is 39.84 acres.

Using the percentages agreed upon in the chancery court for the partition parties, each

partitioned parcel would equal 5.12 acres (39.84 acres x 180/1400 = 5.12 acres). We cannot

find error in this determination. Although it is true that if all of the landowners desired to

partition their property in kind and according to their shares there would be a shortage of

acreage, that was not the situation before the chancellor when she divided the property. The

chancellor had to take other factors into consideration such as location of the parcels, access,

easements, and the ponds. The property of the remaining cotenants fronts a public road

while the three partitioned parcels do not. We cannot say the chancellor abused her

discretion in partitioning the property into three 5.12 acre parcels and a remaining 25.48 acre

parcel. This issue is without merit.

       III.   Deraignment of Title

¶19.   Kohnke argues the chancery court failed to conduct a hearing to determine the

validity of the property’s deraignment found in Tate’s complaint. Kohnke complains that

there is no evidence the deraignment was performed by a competent abstractor, or that “a

title search, abstract, or opinion was entered into evidence.” She claims the deraignment and

supporting documents’ omission from the record is “plain error” and warrants reversal.

¶20.   In order to confirm or quiet title to real estate, the complainant must set forth a


                                              11
deraignment of title. In this case, the deraignment is sufficient if it shows “title out of the

sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of

the [complaint].” Miss. Code Ann. § 11-17-35 (Rev. 2004).

¶21.   Tate’s complaint contained a deraignment of title in paragraph 5. It began with a

reference to the first conveyance from the sovereign, the United States, with references to

the patent, and ended with the conveyance to Annie H. Boone. Accordingly, the statutory

requirement of proof of title was fulfilled. Moreover, Kohnke admitted the accuracy of the

deraignment in her answer. This issue is without merit.

                                      CONCLUSION

¶22.   For the foregoing reasons, the judgment of the Marion County Chancery Court is

affirmed.

¶23.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.




                                              12
