                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                  ______________________________________________

WILLIAM J. BUNCH,

        Plaintiff-Appellee,
                                                                            FILED
                                                        Gibson Chancery No. 11676
Vs.                                                     C.A. No. 02A01-9705-CH-00106
                                                                              January 8, 1998
WALTON I. BUNCH and
STEVEN B. BUNCH,                                                            Cecil Crowson, Jr.
                                                                            Appellate C ourt Clerk
      Defendants-Appellants.
____________________________________________________________________________

                   FROM THE GIBSON COUNTY CHANCERY COURT
                  THE HONORABLE GEORGE R. ELLIS, CHANCELLOR




                         L. L. Harrell, Jr.; Harrell & Harrell of Trenton
                                           For Appellee

                                  G. Griffin Boyte of Humboldt
                                         For Appellants




             REVERSED AND DISMISSED IN PART; AFFIRMED IN PART




                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.




CONCUR:


HOLLY KIRBY LILLARD, JUDGE

HEWITT P. TOMLIN, JR., SENIOR JUDGE
    This case involves a suit to partition certain real and personal property owned by three

brothers as joint tenants with the right of survivorship. Walton and Steven Bunch appeal the

order of the trial court granting the sale for partition.
       William, Walton and Steve Bunch are brothers and own certain real and personal

property in Gibson County as joint tenants with right of survivorship. They inherited this

property from their father as tenants in common, but subsequently created the joint tenancy with

right of survivorship in 1981, on the advice of counsel, in the belief that it would help keep the

property in the Bunch family. Appellant Steve Bunch was the primary caretaker of the farm, but

received occasional assistance from both brothers.

       Appellee William Bunch filed a complaint seeking to have the property sold and the

proceeds divided equally between the three brothers. William asserted that Steve had never

provided an accounting and that he felt that a farm that size should generate more income than

the two to three hundred dollars he received as his share each year. Steve and Walton each filed

an answer and counter-complaint seeking $12,081 and $1,416 respectively for services rendered.

However, both Steve and Walton testified at trial that at the time they rendered their services,

they never expected to be paid.

       After a hearing, the chancellor: (1) ordered a sale of the real and personal property

pursuant to T.C.A. § 29-27-101; (2) awarded appellant Steve Bunch $4,850 for his services; and

(3) dismissed Walton’s counter-claim. Appellants’ Motions to Alter or Amend Judgment or for

a New Trial were denied. Appellants have appealed and present five issues for review which we

have reworded as follows:

               1. Whether a joint tenancy with right of survivorship is capable
               of being sold for partition;

               2. If so, can a joint tenant who participated in the creation of the
               joint tenancy later seek its partition, or is he bound by contract or
               estoppel?;

               3. Did the trial court err in awarding Steve Bunch only $4,850 of
               the $12,081 claimed for services rendered to the estate?;
               4. Did the trial court err in dismissing appellant Walton Bunch’s
               counter-claim for compensation for services rendered to the
               estate?; and

               5. Did the trial court err in directing that the compensation
               awarded to Steve Bunch be paid out of the sale proceeds which
               would, in effect, result in Steve paying a portion of his own
               judgment?

       Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.


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T.R.A.P. 13(d).

                             PARTITION OF A JOINT TENANCY

       At common law, when a conveyance was made to two or more unmarried persons where

the unities of time, title, interest and possession were present, a joint tenancy with the right of

survivorship was created by operation of law, unless the instrument specified that creation of a

tenancy in common was intended. Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801 (1947).

Tennessee abolished the survivorship aspect of joint tenancies created by operation of law by

statute in 1784. See T.C.A. § 66-1-107 (1993) (current version of the 1784 statute). However,

parties can still create estates of survivorship where the instrument creating the estate, whether

deed or will, evidences such an intention. Jones, 206 S.W.2d at 803; McLeroy v. McLeroy, 163

Tenn. 124, 40 S.W.2d 1027 (1931). Although appellee William Bunch claims that he would not

have signed the deed creating the joint tenancy if he had understood the significance of the right

of survivorship, the question before this Court is not whether the tenancy created is valid, but

whether partition can be had against the will of one or more joint tenants.

        In Tennessee, partition is provided for in T.C.A. § 29-27-101:

                Any person having an estate of inheritance, or for life, or for
                years, in lands, and holding or being in possession thereof, as
                tenant in common or otherwise, with others, is entitled to partition
                thereof, or sale for partition, under the provisions of this chapter.

T.C.A. § 29-27-101 (1980). Appellants assert that since the element of survivorship in joint

tenancies was abolished by statute in 1784, the legislature could not have intended to allow the

partition of joint tenancies with the right of survivorship when it enacted the partition statute, on

which the current version is based, in 1787. We disagree, because the statute only abolished the

right of survivorship in joint tenancies created by operation of law, and the right of parties to

specifically provide for a right of survivorship has not been abridged. Jones v. Jones, 185 Tenn.

586, 206 S.W.2d 801 (1947). A joint tenancy with the right of survivorship will be recognized

as valid, as long as the instrument creating the tenancy manifests an intent to create a right of

survivorship. Id. Therefore, the legislature cannot be said to have disallowed the right of joint

tenants to partition on the basis that such an estate does not properly exist.

        We have been unable to locate any Tennessee case that deals directly with the right of

a joint tenant to seek partition of a joint tenancy with right of survivorship in cases where the



                                                 3
partition is opposed by the other joint tenants. However, our research revealed cases comparing

and contrasting joint tenancies with tenancies by the entirety that discuss this issue tangentially

or in dicta. For example, in distinguishing a joint tenancy from a tenancy by the entirety, the

Tennessee Court of Chancery Appeals stated “[a] severance of a joint tenancy may be made, and

the estate thereby turned into a tenancy in common, by any one of the joint owners, at his will.”

Tindell v. Tindell, 37 S.W. 1105, 1106 (Tenn. Ch. App. 1896). Similarly, in addressing the main

issue of whether an interest in property passed to one joint tenant at the death of the other, the

Tennessee Supreme Court stated: “One joint tenant can convey his interest in land without the

joinder of the other tenant.” McLeroy, 163 Tenn. at 127. Most convincing, however, is the

1889 Tennessee Supreme Court case of Bierce v. James, 87 Tenn. 538 (1889), where the Court

discussed in detail the development of the state’s partition statute. The statute in effect at the

time of Bierce defined the persons entitled to have partition or sale for partition, as those “having

an estate of inheritance, or for life, or for years, in lands, and holding and being in possession

thereof as tenants, in common or otherwise, with others.” Code of 1858 § 3262. This statute is

virtually identical to the one currently in effect. We quote from the Court’s discussion of the

development of the partition statute as embodied in the Code of 1858:

                        Before [the enactment of the Code of 1858] several
                changes were made by which the very limited statutory right of
                partition between claimants “of the estate of an intestate” (Act
                1787) was so enlarged and extended as to permit of partition, and
                sale for partition, not only of such estates, but of all estates held
                under will or deed, by tenants in common, or tenants in
                coparceny, joint tenants, or otherwise.

                       The Code, with a slight change in phraseology, included
                the material provisions of all the various Acts preceding, in some
                instances by appropriate section, and in some by condensing
                several sections into one, by including in a single statement
                claimants and interests provided for in separate Acts.

                        *               *               *               *

                        The Act of 1789 extended the right to partition to tenants
                in common, and provided that “where real estate may be held by
                two or more persons as tenants in common, they shall and may
                have the same liberty and privilege of having their estates divided
                as provided by the Act of 1787 for dividing the estates of
                intestates.”

                        In 1799 the partition law was so amended as to define the
                right of partition as extending to any “persons holding lands,
                tenements, or hereditaments in fee simple, or for a less estate as
                tenants in common, or as joint tenants, or in coparceny or


                                                 4
                otherwise,” by providing for the mode of proceeding such persons
                should adopt in order to have partition.

                        *               *                *               *

                        It is enough to say of all these statutes that while at
                different times, and in different terms, provision was made for
                parceners, tenants in common and joint tenants, the effect of all
                was to permit partition or sale for partition in a proper case to all
                these tenants or holders of any undivided interest in connection
                with others, whatever it may have been.


Bierce v. James, 87 Tenn. 538, 540-42 (1889).

        On the authority of Bierce, Tindell, and McLeroy, we hold that an estate held by joint

tenants with the right of survivorship may be partitioned, or sold for partition in an appropriate

case, at the instance of one or more joint tenants, whether or not all joint tenants join in the

petition. This holding is in line with the majority rule and is stated as the general rule in 59A

Am. Jur.2d Partition § 27 (1987); 68 C.J.S. Partition § 1 (1950); 20 Tenn. Jur. Partition §§ 2-4

(1997); and Roger A. Cunningham et al., The Law of Property § 5.11 at p.223 (West 1993).

Furthermore, allowing such a partition is consistent with “the policy of the law to give each

person his own in severalty and not to force him to continue in partnership with another.” Nicely

v. Nicely, 41 Tenn. App. 179, 183, 293 S.W.2d 30, 32 (1956).

        We now turn to the question whether a joint tenant who participated in the creation of the

joint tenancy can later seek its partition. Appellants assert that since William Bunch acted with

his brothers to create the joint tenancy, he is estopped from now seeking its destruction. We

cannot agree. Under the facts of this case, we can find no detrimental reliance on the part of the

appellees that would warrant the application of an estoppel. Nor can we find any contractual

basis under which to deny William his right to seek a partition. Courts of other states have

denied partition in cases where a cotenant has entered into an agreement not to partition. See,

e.g., Wade R. Habeeb, Annotation, Contractual Provisions as Affecting Right to Judicial

Partition, 37 A.L.R.3d 962 (1971). However, in this case we can find no evidence of such an

agreement, either express or implied. We hold that the trial court did not err in granting the

petition of William Bunch for a sale for partition of the real and personal property owned jointly

by the three brothers. Since the manner of partition was not questioned on appeal, we assume

that the parties agree that the property in question is not suitable for partition in kind. Therefore,



                                                  5
the trial court’s decision to order a sale for partition will not be disturbed on appeal.



                 COMPENSATION FOR SERVICES TO THE JOINT ESTATE

          Issues 3, 4 and 5 regarding compensation for services rendered to the jointly owned estate

will be treated together. The trial court denied Walton Bunch’s claim for services rendered to

the estate, but awarded Steve Bunch $4,850 “for management of the property.” Neither side has

presented any authority which allows a joint tenant to be compensated for services rendered to

the joint estate, nor are we able to find any Tennessee case law on point. Tennessee law does

provide, however, that in distributing the proceeds of a partition sale, a cotenant in sole

possession of the property is liable to the other cotenants for rents and profits received in excess

of his pro rata share. Omohundro v. Elkins, 109 Tenn. 711, 71 S.W. 590 (1902); Johnson v.

Johnson, 53 S.W. 226 (Tenn. Ch. App. 1899). Furthermore, where one tenant has made

improvements to the property, he is entitled to an allowance for the cost of the improvements to

the extent the value of the land was enhanced. Uhlhorn v. Keltner, 723 S.W.2d 131 (Tenn. App.

1986); Wilburn v. Kingsley, 3 Tenn. App. 88 (1926). However, we are persuaded by other

jurisdictions who have held that absent an agreement, a cotenant is not entitled to credit for the

value of personal services in managing and caring for the property. See Roger A. Cunningham

et al., The Law of Property § 5.12 at p. 228 (West 1993) (citing Goodenow v. Ewer, 16 Cal. 461

(1860); Baird v. Moore, 141 A.2d 324 (N.J. Super. Ct. App. Div. 1958); Myers v. Bolton, 52

N.E. 114 (N.Y. 1898)). There is no evidence of such an agreement in this case and the testimony

of the parties makes it clear that at the time services were rendered, compensation was not

contemplated.

          For the foregoing reasons, we hold that none of the parties are entitled to receive

compensation for the value of services rendered for the care and management of the jointly held

estate.

          The judgment of the trial court awarding Steve Bunch $4,850.00 is reversed, and his

counterclaim is dismissed. The judgment is otherwise affirmed. Costs of the appeal are assessed

against the appellants.



                                                        _________________________________

                                                  6
                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
HOLLY KIRBY LILLARD, JUDGE

____________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE




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