                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2010-CA-01705-SCT

BETTY LOCKHART

v.

RICHARD COLLINS, PEGGY COLLINS, BOLIN
HAMILTON AND ORENE HAMILTON

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          07/02/2010
TRIAL JUDGE:                               HON. JACQUELINE ESTES MASK
COURT FROM WHICH APPEALED:                 MONROE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    CARTER DOBBS, JR.
ATTORNEY FOR APPELLEES:                    MARTHA BOST STEGALL
NATURE OF THE CASE:                        CIVIL - REAL PROPERTY
DISPOSITION:                               AFFIRMED - 02/16/2012
MOTION FOR REHEARING FILED:                12/22/2011
MANDATE ISSUED:


       BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn, and this

opinion is substituted therefor.

¶2.    J.C. and Betty Lockhart owned a life estate in an undivided one-fourth interest in 160

acres in Monroe County, Mississippi. After the death of J.C., Betty Lockhart filed a

complaint to partition by public sale the land that she shared with her in-laws, Bolin and

Orene Hamilton. The Hamiltons also own a life estate in the same property, and they

maintain the property as their homestead. Additionally, Lockhart sued Richard and Peggy
Collins, who have a future interest in the property as remaindermen. The trial court

dismissed Lockhart’s petition, and Lockhart appealed. Because Lockhart failed to meet the

statutory requisites for a partition sale, we affirm the chancellor’s ruling.

                             PERTINENT CONVEYANCES

¶3.    The following conveyances reveal the parties’ current interests in the 160 acres.

¶4.    In 1947, R.T. Ray conveyed the property to W.E. Lockhart and Bolin Hamilton as

tenants in common. W.E. was the father of Orene Hamilton and J.C. Lockhart, and the

father-in-law of Bolin Hamilton. In his Last Will and Testament, W.E. devised his undivided

one-half interest to his two children, J.C. and Orene. At that point in time, Bolin Hamilton

held an undivided one-half fee-simple interest, and Orene and J.C. each held an undivided

one-fourth fee-simple interest in the 160 acres.

¶5.    In 2007, J.C. Lockhart and his wife Betty conveyed his fee-simple interest to his son

(Betty’s stepson), Joel Lockhart. This conveyance reserved a life estate in the Lockharts.

Around the same time, Bolin and Orene Hamilton conveyed their combined three-fourths

fee-simple interest in the property to their daughter, Peggy Collins. They also reserved a life

estate in their combined three-fourths interest.      In 2008, Joel Lockhart conveyed his

undivided one-fourth fee-simple interest to Richard and Peggy Collins, subject to the life

estate of his stepmother, Betty Lockhart. Peggy Collins then quitclaimed her remainder

interest in the property to herself and her husband, Richard.

¶6.    Accordingly, Lockhart has a life estate in an undivided one-fourth interest; Bolin and

Orene Hamilton have a life estate in the remaining undivided three-fourths interest; and

Richard and Peggy Collins have the remainder of the entire 160 acres.


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                                PROCEDURAL HISTORY

¶7.     With the death of her husband in 2007, Betty Lockhart left the property and filed a

complaint against the Hamiltons and the Collinses (the “Defendants”) seeking to partition

by public sale the 160 acres in which she has a life estate. The Defendants opposed the

complaint, and asserted that Lockhart lacked standing to seek partition by sale. Additionally,

the Defendants asserted that the property was not subject to partition, since it was

homesteaded by the Hamiltons. The Defendants filed a motion to dismiss Lockhart’s

complaint, which the chancellor granted, in part.

¶8.    In a very detailed order, the chancellor found that Lockhart had standing to seek

partition under Mississippi Code Section 11-21-3,1 because both Lockhart and the Hamiltons,

together as cotenants, share a present right to possess and use the property. The chancellor

further found that Lockhart was not entitled to partition by sale, unless by written agreement

of the parties under Section 11-21-1(2),2 because the property was homesteaded by the

Hamiltons. And she noted that, in the event a partition of the property should become




       1
        Section 11-21-3 provides that “[p]artition of land held by joint tenants, tenants in
common, or coparceners, having an estate in possession or a right of possession and not in
reversion or remainder, whether the joint interest be in the freehold or in a term of years not
less than five (5), may be made by judgment of the chancery court of that county in which
the lands or some part thereof, are situated . . . .” Miss. Code Ann. § 11-21-3 (Rev. 2004).
       2
         Section 11-21-1(2) provides that “[h]omestead property exempted from execution
that is owned by spouses shall be subject to partition pursuant to the provisions of this section
only, and not otherwise.” Subsection (1) of Section 11-21-1 provides that “[p]artition of
land held by joint tenants, tenants in common, and coparceners, may be made by agreement,
which shall be evidenced by a writing, signed by the parties . . . .” Miss. Code Ann. § 11-21-
1(2) (Rev. 2004).

                                               3
available, a sale of the property was not warranted under Mississippi Code Section 11-21-

11.3

¶9.    Lockhart appeals and claims that the chancellor erred in ruling that Section 11-21-1(2)

acts to prevent partition, unless by written agreement, when the partition is not between

spouses, but, rather, couples.

                                        DISCUSSION

       Standard of review

¶10.   This Court will not disturb a chancellor’s findings of fact unless such findings are

manifestly wrong or clearly erroneous.4 But we review all questions of law de novo.5

       Whether partition by sale can occur by decree of the chancery court
       where more than one couple share a right to use and possess the property.

¶11.   In Mississippi, the right to partition is absolute, however inconvenient it may be, with

the exception of the limitation placed on homestead property.6 This statutory exception,

provided in Mississippi Code Section 91-1-23 (Rev. 2004), prevents a forced partition of

homestead property of a surviving spouse who is using and occupying the property.7

Otherwise, partition of land “held by joint tenants, tenants in common, or coparceners,


       3
         Mississippi Code Section 11-21-11 (Rev. 2004) provides for a partition sale where
a chancellor determines (1) “a sale of the lands, or any part thereof, will better promote the
interest of all parties than a partition in kind;” or (2) “an equal division cannot be made[.]”
       4
           Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 930 (Miss. 2003).
       5
           Id.
       6
      Cheeks v. Herrington, 523 So. 2d 1033, 1035 (Miss. 1988); Daughtrey v.
Daughtrey, 474 So. 2d 598, 601 (Miss. 1985).
       7
           Miss. Code Ann. § 91-1-23 (Rev. 2004).

                                               4
having an estate in possession or a right of possession . . . may be made by judgment of the

chancery court of that county in which the lands or some part thereof, are situated.” 8

¶12.   Lockhart’s complaint specifically prays for the chancery court to partition the land in

question by public sale and to divide the proceeds among her, the Hamiltons, and the

Collinses. As owners of a life estate, both Lockhart and the Hamiltons have a right to use

and possess the property for the duration of their respective lives. On the other hand, the

Collinses are remaindermen and do not have a right to use and possess the property. The

statute allows for partition only as between “. . . tenants in common . . . having an estate in

possession or a right of possession . . . .”

¶13.   A tenancy in common occurs when “two or more persons, in equal or unequal

undivided shares,” 9 have an equal right to possess the property. Moreover, our caselaw has

recognized that:

       It is not essential to the right of partition that the cotenants shall have estates
       that are equal. One may have a term, another an estate for life, and another an
       estate in fee. All that is necessary is that they shall be cotenants of what is
       proposed to be partitioned. A remainder or reversion will not be partitioned,
       but that does not hinder an estate in possession from being partitioned among
       the co-tenants, and the fact that there is a remainder or reversion is not a bar
       to partition among those having an interest in possession.10

“Cotenant” is defined as a “tenancy with two or more co-owners who have unity of

possession,” such as a joint tenancy or a tenancy in common.11 Further, the manner in which


       8
           Miss. Code Ann. § 11-21-3 (Rev. 2004).
       9
           Black’s Law Dictionary 1506 (8th ed. 2004).
       10
            Black v. Washington, 65 Miss. 60 (1887).
       11
            Black’s Law Dictionary 1505 (8th ed. 2004).

                                               5
the partition is accomplished is determined by one’s right to possession.12 Under the first

paragraph of Section 11-21-3, partition is a possessory proceeding only. This means

Lockhart has standing only to seek a partition against the Hamiltons as owners of the

adjoining life estate and not against the fee of the estate owned by the Collinses as

remaindermen.13

¶14.   Next, because Lockhart had standing to proceed against the Hamiltons for partition,

we address whether Section 11-21-1 is applicable. Section 11-21-1 provides that “[p]artition

of land held by joint tenants, tenants in common, and coparceners, may be made by

agreement, which shall be evidenced by a writing, signed by the parties . . . .” Subsection

(2) of Section 11-21-1 states that “[h]omestead property exempted from execution that is

owned by spouses shall be subject to partition pursuant to the provisions of this section only,

and not otherwise.” A plain reading of these two statutes reveals that when property is

owned by spouses, and those spouses maintain the property as their homestead, partition is

available only by written agreement between the parties. “When a statute is plain on its face,

there is no room for statutory construction.” 14

¶15.   We cannot agree with the chancellor’s application of this statute, because the entire

parcel of property was owned by the Hamiltons and Lockhart, not by spouses. In Solomon



       12
            Cheeks, 523 So. 2d at 1036.
       13
          “It is generally held that a life tenant or tenant for years can maintain a suit for
partition as among his or her cotenants for life or for years. The holder of a life estate or an
estate for years cannot sue the remaindermen or reversioners for partition in the absence of
statutory authorization.” 68 C.J.S. Partition § 69 (2011).
       14
            Camp v. Stokes, 41 So. 3d 685, 686 (Miss. 2010).

                                               6
v. Solomon,15 this Court held that “where the wife of a tenant in common owning an

undivided interest in land, occupies the land as a homestead, the occupation of the property

by her does not enlarge her interest therein as against her husband’s cotenants, but the land

is at all times subject to partition by the cotenants.” 16 Here, the fact that the Hamiltons

occupy part of the land as a homestead does not enlarge their three-fourth interest in the land

against their cotenant, Lockhart’s one-fourths interest. Rather, the protections under the

homestead statutes are respective to each cotenant’s interest in the property.17 Accordingly,

the land is subject to partition by Lockhart, absent some statutory exception.

¶16.   Nevertheless, the chancellor found that, in the event a partition of the subject property

should become available, a sale of the property in the first instance was not warranted under

Section 11-21-11. This statute requires that, before the court may order a sale in the first

instance, it must find that a sale of the lands will better promote the interests of all parties

than a partition in kind, or the court must be convinced that an equal division cannot be

made.18 Lockhart bears the burden to prove that the statutory requisites for a partition sale

are met.19 The record is devoid of any proof regarding either statutory requisite. And since

the chancellor lacks the “authority to decree a sale unless the statutory requisites are ‘clearly’




       15
            Solomon v. Solomon, 192 So. 10 (Miss. 1939).
       16
       Id.; see also Carter v. Brewton, 396 So. 2d 617, 618 (Miss. 1981) (quoting Dillon
v. Hackett, 37 So. 2d 744, 746 (Miss. 1948)).
       17
            Id.
       18
            Miss. Code Ann. § 11-21-11 (Rev. 2004).
       19
            Overstreet v. Overstreet, 692 So. 2d 88, 90-91 (Miss. 1997).

                                                7
met and a ‘substantial reason’ exists for choosing partition by sale over partition in kind,” 20

we cannot hold her in error.

                                       CONCLUSION

¶17.   Section 11-21-1(2) is inapplicable to the present facts. Nevertheless, we agree with

the chancellor’s alternative ruling. Accordingly, we affirm.

¶18.   AFFIRMED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND KING, JJ., CONCUR.




       20
            Unknown Heirs at Law of Blair v. Blair, 601 So. 2d 848, 850 (Miss. 1992).

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