                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                         ASSIGNED ON BRIEFS JULY 14, 2000

   JOSEPH F. CANEPARI, JR., ET AL. v. GEORGE D. SUMMERS, ET AL.

                 Direct Appeal from the Chancery Court for Fayette County
                 No. 12334; The Honorable Dewey C. Whitenton, Chancellor



                  No. W2000-00527-COA-R3-CV - Filed November 20, 2000


This is a suit for the partition of land. The Appellees brought a Complaint for Partition of Land by
Sale in the Chancery Court of Fayette County. The Appellants answered and brought a counterclaim
requesting the trial court to order the Appellees’ one third-interest in the property to be partitioned
by sale to the Appellants. The Chancery Court of Fayette County found for the Appellees, ordering
the property to be sold by partition.

      The Appellant appeals from the Order for Sale of Real Property for Partition executed by the
Chancery Court of Fayette County. For the reasons stated herein, we affirm the trial court’s decision.


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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD , J., joined.

John D. Horne, Memphis, for Appellants

J. Houston Gordon, Covington, for Appellees

                                             OPINION

                                 I. Facts and Procedural History

       On October 26, 1976, Burke and Virginia H. Owen executed an inter vivos trust agreement
which created an irrevocable trust. The trust named their son, Joe B. Owen, as primary beneficiary
and named Joe B. Owen and their two daughters, the Appellant, Eola Owen Summers (“Mrs.
Summers”), and Anita Joyce Owen, as trustees. The same day, Burke and Virginia H. Owen
conveyed to the trustees by quitclaim deed a one-third interest in an undivided one-fourth of the
property which is the subject of this lawsuit. The unconveyed three-fourths interest in the property
remained vested in Burke and Virginia H. Owen as tenants by the entirety. On November 17, 1977,
Burke Owen died. Virginia H. Owen acquired full title of the remaining three-fourths interest in
the property by right of survivorship.

       The trust expired on October 26, 1986 at which time Joe B. Owen, as primary beneficiary,
became seized in fee of his interest conveyed to the trustees in the quitclaim deed. On April 20,
1989, Virginia H. Owen died intestate. The three-fourths interest in the property passed by intestate
succession to her daughters, Mrs. Summers and Anita Joyce Owen, and her grandson, the Appellee,
Joseph B. Owen, Jr. (“Mr. Owen”) the sole surviving heir of her son, Joe B. Owen, who died
previously.

        On July 11, 1989, Mr. Owen purportedly transferred his one-third interest in the property to
the Appellant, George D. Summers, by warranty deed.1 Anita Joyce Owen transferred her one-third
interest in the property to the Appellees, Joseph and Suzanne Canepari (“Canepari”), pursuant to a
warranty deed executed on January 16, 1997. Mrs. Summers continues to hold her one-third interest
in the property. The parties hold their respective one-third interests in the property as tenants in
common.

        On April 29, 1999, Canepari and Mr. Owen, individually and by his next friend, Dorothy
Jean Owen, filed a Complaint for Partition of Land by Sale with the Chancery Court of Fayette
County. 2 Mr. Summers and his mother, Mrs. Summers (“Summers”) filed a Counter Complaint
requesting the trial court to order Canepari’s one-third interest in the property to be partitioned by
sale to Summers. Both parties stipulated in their pleadings that the property was not susceptible to
an equitable division in kind.

        On January 5, 2000, Summers filed a Motion for Continuance of Trial scheduled for January
7, 2000. Summers’ argument for continuance was twofold: (1) there had been no judicial resolution
of Mr. Owen’s claims to an ownership interest in one-third of the property; and (2) the court had not
found whether Mr. Owen and Dorothy Jean Owen had standing and/or capacity to sue. On January
7, 2000, the trial court denied Summers’ Motion for Continuance and ruled as a matter of law that
the property should be sold for partition. The trial court found that since the parties stipulated that
the property could not be fairly divided in kind, the only fair means of partitioning the property was
to have a sale of partition. The trial court further directed that the funds resulting from the partition


         1
           This transfer is disputed and is the subject of pending litigation in a case styled Anita Joyce Owen and Dorothy
Jean Owen , on relation of Joseph B. Ow en, Jr., and Jo seph B. O wen, Jr. v . George D. Summers , Chancery Court of
Fayette County , Docke t No. 117 97. Mr . Owen filed his com plaint o n February 11, 1997, seeking to set aside the
transfer as fraudulent. Following a jury trial held on February 16 - 18, 1999, the trial court declared a mistrial when
the jury w as unab le to reach a verdict. Th e case is still pend ing in the tria l court.


         2
           In joining in th is comp laint, Mr. Owen requested the trial court to protect his interest in the proceeds from a
partition of the property by sale by requiring the deposit of the one-third interest with the clerk an d master in an interes t-
bearing account pending a final order and judgment of the case presently pen ding betwee n Mr. Ow en and M r. Summ ers.



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sale be held by the clerk and master until judicial resolution of Mr. Owen’s claim to one-third of the
property. This appeal followed.

                                             II. Standard of Review

        The Appellant presents two issues for our review: (1) whether the trial court erred when it
disposed of the case on the merits before disputed claims of ownership in the property had been
resolved; and (2) whether the trial court erred when it refused to fashion an equitable remedy. 3 The
standard of review for a non-jury case is de novo upon the record. See Wright v. City of Knoxville,
898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court’s
factual findings, unless the “preponderance of the evidence is otherwise.” Tenn. R. App. P. Rule
13(d). For issues of law, the standard of review is de novo, with no presumption of correctness. See
Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996). In the case at bar, the issues
involve matters of law, not of fact, therefore, our review is de novo on the record with no
presumption of the correctness of the trial court’s conclusions of law.

                                             III. Law and Analysis

        The first issue presented for our review is whether the trial court erred when it disposed of
the case on the merits before disputed claims of ownership in the property had been resolved.
Summers cites three cases to support his argument. See Fuller v. Montague, 59 F. 212 (6th Cir.
1893); Campbell v. Lewisburg & N.R., 26 S.W.2d 141 (Tenn. 1930); Nicely v. Broyles, 23 Tenn.
(4 Hum.) 177 (1843). Each of these cases stands for the proposition that partition cannot be decreed
while the title to the subject property is in dispute; however, we can distinguish the situation in the
case at bar from the cases cited by Summers.

         In the case at bar, the trial court was not attempting to establish title between the parties.
Rather, the trial court ordered that the proceeds obtained through the sale of the property be placed
with the clerk and master until title is resolved between Mr. Owen and Mr. Summers in the pending
litigation. Upon resolution of the property dispute, the proceeds will be distributed to the proper
parties. Furthermore, as reasoned by the trial court, all the interested parties, including those
involved in the pending litigation, are before this court. The cases cited by Summers failed to
address such a situation. Due to the distinctive nature of the case at bar, we find it is not error to
dispose of this case on the merits before disputed claims of ownership in the property have been
resolved.

       The second issue for our consideration is whether the trial court erred when it refused to
fashion an equitable remedy by partitioning by sale Canepari’s one-third interest in the property to


         3
            The Appellees assert in their brief that the pending case between Mr. Owen and Mr. Summers is immaterial
to the case at h and. In the alternative, the Appellees present an additional issue: whether Mr. Summers should be denied
relief in the case at hand on the basis of equity due to his unclean hands in the transfer between Mr. Owen an d himself.
We find the dispute d transfer is im material to the case at h and and refuse to ad mit or de ny relief on its ground s.

                                                          -3-
Summers. In our opinion, this issue is controlled by the case of Yates v. Yates, 571 S.W.2d 293
(Tenn. 1978). In Yates, a partition suit for the sale of real estate, the chancellor divested title from
a co-tenant and vested title in another co-tenant. The Supreme Court of Tennessee, in reversing the
action of the chancellor, stated:
                 As a general proposition of law, a tenant in common is entitled to partition,
        or sale for partition. Section 23-2101, T.C.A. As stated by Chancellor Gibson: “The
        policy of the law is to give each person his own, in severalty, and not to force a
        person to continue in partnership with another. Section 1105, Gibson’s Suits in
        Chancery (Fifth Ed.).” The statutory recognition of this to-each-his-own policy
        mandates that the courts decree partition of real estate owned as tenants in common
        if the property is susceptible of such partition. Otherwise, or if manifestly to the
        advantage of the parties, it must be sold. Courts have a measure of discretion as to
        the manner of partition but none as to the fact. [emphasis in original].

                                                 ***

                 While the Court has a statutory and inherent right to adjust the equities and
        settle all claims between or among the parties, it has no power to divest title out of
        one tenant and vest it in another. The statutory adjustment must be made by an
        appropriate allocation of the net sales proceeds, to be reflected in the Court’s decree
        on distribution.

Id. at 296.


       The statement by our supreme court as to the lack of power of the court to divest title out of
one co-tenant and into another is clear and without qualification. The trial court did not err in
refusing to partition by sale Canepari’s one-third interest in the property to Summers.

                                           IV. Conclusion

        For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellants, George D. Summers and Eola Summers, for which execution may issue
if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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