                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 19, 2011 Session

                 ELMA LOU HALE v. GERALD D. HALE ET AL.

               Appeal from the Chancery Court for Van Buren County
                   No. 1240     Larry B. Stanley, Jr., Chancellor


                 No. M2010-00760-COA-R3-CV - Filed March 4, 2011


This is the second appeal of an action to partition 74 acres. Plaintiff is a widow who owns
a one-half interest in the land as a tenant in common with Defendants, Plaintiff’s stepson and
his wife. Plaintiff filed this action in 2008 to partition the property by sale. Defendants
opposed a sale and sought partition in kind. The trial court ordered the property sold upon
findings that a partition in kind was impractical and that the two tracts were more valuable
if sold together. Defendants appealed, and we affirmed with instructions that the property be
sold on remand. Before the sale, a survey was conducted which revealed that Defendants’
home, located on a one-acre tract owned separately by Defendants, encroached on the
property held by the parties as tenants in common. In order to resolve the encroachment
issue, the trial court ordered Plaintiff to quitclaim a mere 0.168 acres to Defendants and
ordered Defendants to quitclaim a like-sized portion of the property of equal value to
Plaintiff. Although this remedy was favorable to Defendants, they nonetheless appealed,
claiming the trial court had no legal authority to order them to quitclaim any property to
Plaintiff. We have determined the trial court is authorized to partition a portion of the
property in kind, pursuant to Tenn. Code Ann. § 29-27-104, and to order that the remaining
property be partitioned by sale. Thus, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and R ICHARD H. D INKINS, J., joined.

L. Thomas Austin, Dunlap, Tennessee, for the appellants, Gerald D. Hale and Bonnie F.
Hale.

J. Al Johnson, Spencer, Tennessee, for the appellee, Elma Lou Hale.
                                               OPINION

       Elma Lou Hale1 (“Plaintiff”), a widow, filed a Complaint for Partition by Sale in the
Chancery Court for Van Buren County on April 16, 2008, seeking to sell real property she
owns as a tenant in common with her stepson and his wife, Gerald and Bonnie Hale
(“Defendants”). In their answer, Defendants asserted that the property should be partitioned
in kind but not sold.

       The property to be partitioned, 74 acres of rural property, is comprised of two
adjoining tracts in Golden Point Property in Van Buren County, Tennessee. Plaintiff and her
now deceased husband, Glenn Hale, along with Defendants, acquired the property in two
transactions. The first acquisition, tract 8, was purchased by the parties in 1991; the second
acquisition, tract 7, was purchased in 1998. Each couple owned their respective interest in
the property as tenants by the entirety.

        In September 1998, the parties conveyed a one-acre plot out of tract 7 to Defendants
for their separate ownership, apart from Plaintiff and Glenn Hale. Defendants’ marital
residence was located on this plot.2 In 2003, the parties similarly conveyed one acre from
tract 8 to Plaintiff and Glenn Hale, so that they could also separately own the property on
which their marital home was located.

        When Glenn Hale died in 2007, Plaintiff became the sole owner of their property as
the surviving tenant by the entireties. Thus, after Glenn’s death, she owned a one-half interest
in the property to be partitioned as a tenant in common with Defendants.

        In the first trial, held on July 28, 2008, two witnesses testified. Hugh Hale, a first
cousin of Glenn Hale, testified as an expert on real property values in Van Buren County. He
testified that if one were to divide the property in half by size, one would be “pulling value
off,” and that an equitable division by size would be impossible because a portion of the land
“is worth a lot more money” than the rest of the property due to road frontage and




        1
         Emma Hale’s legal name, according to her attorney’s statement in court, is Elma Lou Hale;
however, as her attorney told the chancellor, “everybody calls her ‘Emma’.” Both names were used in the
papers submitted in this appeal.
        2
         It is this structure, Gerald and Bonnie Hale’s marital residence, that encroaches upon the property
to be partitioned by sale by a two-foot wide strip, for a total of 62.5 square feet.

                                                    -2-
topography.3 He also testified that the property could not be divided equally by value without
regard for size, because such a division would result in two properties of significantly
different sizes. Last, he stated that a developer would want to buy the entire property as a
whole, and that selling it in one piece would yield a higher price than could be expected if
the land was divided and sold.

        Defendant Bonnie Hale was the only other witness to testify. She testified (briefly)
that she and her husband wanted to keep the property and have it divided in a fair, equal way.

        At the conclusion of the first trial, the trial court found that “the property in question
cannot be reasonably divided between the parties without substantially lowering its value and
creating parcels that are not substantially equal for the use of the parties.” Therefore, the
court ordered the Clerk and Master to sell the property at auction. Defendants appealed that
ruling, arguing that the trial court erred by ordering the partition by sale rather than a
partition in kind. We affirmed the trial court in all respects and remanded with instructions
to proceed with the sale as ordered by the trial court. See Hale v. Hale, No.
M2008-02649-COA-R3-CV, 2009 WL 2474703 (Tenn. Ct. App. Aug. 13, 2009).

       On remand, a survey was conducted in order to provide an accurate legal description
of the property to be sold. The survey revealed that Defendants’ house and driveway
encroached beyond their one-acre plot onto the jointly owned portion of tract 7. The twenty-
five foot house encroaches by a 2.5-foot strip, for a total of 62.5 square feet. Including the
driveway, the total area of the encroachment is a mere 0.168 acres; nevertheless, the presence
of even a small encroachment could have an adverse effect on the property’s value.

        When the encroachment was discovered, Plaintiff proposed that it be cured equitably
by two quitclaim conveyances. First, Plaintiff would quitclaim to Defendants the 0.168 acres
of tract 7 upon which Defendants’ house and driveway encroach. Correspondingly,
Defendants would quitclaim to Plaintiff an equal-sized portion of tract 8 adjacent to
Plaintiff’s separately owned one-acre tract. Defendants opposed this plan and filed a motion
attempting to assert a claim by adverse possession to the area upon which their house and
driveway encroached. The motion was titled “Petition for Adverse Possession.” The trial
court denied Defendants’ motion and granted Plaintiff’s, ordering the parties to quitclaim a
0.168 segment of the property to be partitioned to the other as their separate property in order
to remedy the encroachment issue.

       Again dissatisfied with the trial court’s ruling, Defendants filed this appeal. The issues
presented in the second appeal of this partition action are: (1) Whether the trial court erred

       3
           The record does not reveal exactly which tract or sections he was comparing.

                                                    -3-
in failing to grant Defendants’ “Petition for Adverse Possession;” and (2) Whether the trial
court erred in partitioning a portion of Tracts 7 and 8 to require each party to convey 0.168
acres to the other.

       This court reviews the trial court’s findings of fact de novo, with a presumption of
correctness unless the preponderance of the evidence shows otherwise. Tenn. R. App. P.
13(d). As for the trial court’s legal determinations, they are reviewed de novo with no
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993).

        It is undisputed that tracts 7 and 8 cannot reasonably divided between the parties
either by size or value, and that they are much more valuable if sold together than if they
were somehow divided and sold separately; thus, the trial court correctly ordered the sale of
the property instead of partition in kind. See Yates v. Yates, 571 S.W.2d 293, 296 (Tenn.
1978) (reasoning that if a sale is “manifestly to the advantage of the parties,” the property
must be sold); see also Medley v. Medley, 454 S.W.2d 142, 151 (Tenn. Ct. App. 1969) (“If
by partition the value of all shares would be less than the value of the tract as a whole then
partition would be manifestly inequitable and a sale should be decreed.”). Moreover, based
upon our ruling in the first appeal, the decision to partition the property by sale is now the
law of the case. Thus, the property must be sold.

        Unfortunately, the encroachment question remains. Although unwilling to carry out
Plaintiff’s proposed exchange despite its clear advantages, Defendants seek title to the 0.168-
acre strip through a “Petition for Adverse Possession,” and contend that the trial court erred
by denying this so-called “petition.” We find this assertion is wholly without merit. Although
titled “Petition for Adverse Possession,” we find this filing was merely a motion, an improper
vehicle by which to assert a claim of adverse possession. The fact that the “petition” stated
it would be heard seven days from the date of filing bolsters this conclusion. A seven-day
period before a hearing is sufficient for the filing of a motion; however, it is not sufficient
for the filing of a petition, in this case a counterclaim in which a new and independent claim
for relief is asserted against the adverse party. Moreover, Defendants did not seek, much less
obtain, leave of court to amend their pleading, which would have been required to properly
assert an affirmative claim for adverse possession in this pending action. See Tenn. R. Civ.
P. 15.01. Thus, the trial court acted correctly in denying Defendants’ motion for adverse
possession.

      That leaves us with one issue: whether the trial court erred by ordering each party to
convey a 0.168-acre tract of equal value to the other to cure the problems arising from
Defendants’ encroachment on the jointly held property. We have determined the trial court



                                              -4-
had the authority to partially partition the property in kind and that the manner by which it
cured the encroachment problem was equitable.

        We found several Tennessee cases in which courts ordered partial partitions in kind
and order the remaining property be partitioned by sale. The most recent Tennessee case
authorizing a partial partition is Crawford v. Crawford, No. E2002-00372-COA-R3-CV,
2002 WL 31528504 (Tenn. Ct. App. Nov. 14, 2002). In that matter, Nancy Crawford, one
of several tenants in common, filed a partition action seeking partition in kind of a small
portion of the property owned by the co-tenants, 0.604 acres of the subject property, the value
of which was substantially less than her pro rata share of the entire property held as tenants
in common. She requested sole title to this 0.604-acre strip because it adjoined a piece of
property which she separately owned and where her house was located. Also, she and her late
husband had used, maintained and improved a barn located on the 0.604-acre tract for years,
erroneously believing it was located on their separately owned property. The other co-tenants
opposed a partial partition in kind of the property and requested partition by sale of the entire
tract. On appeal, this court determined that, under Tenn. Code Ann. § 29-27-104, the trial
court had the authority to partially partition the property in order to set aside the 0.604 acres
as Ms. Crawford’s separate property and to order that the remaining property be partitioned
by sale. The Crawford court stated that a partial partition in kind is authorized under Tenn.
Code Ann. § 29-27-104, which provides:

       [P]artition shall be made according to the respective rights of the parties,
       setting apart to such as desire it their shares in severalty, and leaving the shares
       of others, if desired, in common; and if there are minors, the court may, in its
       discretion, leave their shares in common, or set them apart to each in severalty,
       as may appear to be just, upon the proof introduced.

Crawford, 2002 WL 31528504, at *4 (quoting Tenn.Code Ann. § 29-27-104 (2002)). The
statute reads the same today.

       A similar legal conclusion was reached in McLean v. Murphy, No.
01-A-01-9305-CH-00212, 1993 WL 453726 (Tenn. Ct. App. Nov. 3, 1993). In McLean, the
court held that a partial partition in kind could be ordered wherein land equal to one-half of
the value of the property at issue be allocated to the co-tenants who opposed a sale and that
the remaining property be allocated to the remaining co-tenants who could then partition their
property by sale if they so chose. Id. at *6-7.

      The same legal principle was applied sixty years earlier in Baumgartner v.
Baumgartner, 67 S.W.2d 154 (Tenn. Ct. App. 1933). Nine children from two different
marriages of their father were battling over property they inherited from him as tenants in

                                               -5-
common. Id. at 155. Each of them owned an undivided one-ninth interest in the property. Id.
The three children from their father’s second marriage filed suit seeking to have the entire
property partitioned by sale. Id. The six children from his first marriage opposed a sale of all
the property; however, they did not oppose a partition in kind whereby the six of them would
retain, as co-tenants, a portion of the property equal to two-thirds of the value of the entire
tract. This way, the six children from the first marriage would continue to own their two-third
interest in the property as co-tenants and the three children of the second marriage could sell
their one-third interest. Id. at 159. This court ruled that such a division was permissible under
the statute. Id.

        Our statutory scheme provides that “any person having an estate for years in land, as
a tenant in common with others, is entitled to partition either in kind or by sale.” Crawford,
2002 WL 31528504, at *3 (citing Tenn. Code Ann. § 29-27-101 (2001)); Nicely v. Nicely,
293 S.W.2d 30, 32 (Tenn. Ct. App. 1956) (“It is the policy of the law to give each person his
own in severalty and not to force him to continue in partnership with another.”). The above
cases further clarify that a partition in kind need not be ordered for the entire property if a
partial petition in kind “may appear to be just.” Tenn. Code Ann. § 29-27-104; see also
Crawford, 2002 WL 31528504, at *4.

        We also recognize that Tennessee courts “have a measure of discretion as to the
manner of partition.” Id., at *3 (quoting Yates v. Yates, 571 S.W.2d 293, 296 (Tenn.1978)
(emphasis in original)). In this case, we find that the trial court properly exercised its
discretion in ordering a partial partition in kind of the two small tracts to each party. This
court had already determined that a partition in kind of the entire property, as Defendants
requested, was not feasible. Being unable to partition the property in kind, the trial court
sought to maximize the sale price, for the benefit of both parties, by eliminating the
encroachment problem in such a way as to have the least impact on the previously ordered
sale. The partial partition in kind affects only a small fraction of the total acreage held by the
parties as tenants in common. Additionally, it benefits Defendants by allowing them to retain
more of the jointly owned property, including the area under and around their driveway. We
find no error with this decision.

      Accordingly, we affirm the trial court’s decision to order a partial partition in kind of
two 0.168-acre tracts as an equitable cure for Defendants’ encroachment so that the
previously ordered partition by sale of the remaining property can go forward.




                                               -6-
                                     I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellants, Gerald D. Hale and Bonnie F. Hale.


                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




                                             -7-
