MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             May 06 2016, 9:07 am

this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
Steven L. Whitehead                                      Margaret M. Christensen
Princeton, Indiana                                       Karl L. Mulvaney
J. Robert Kinkle                                         Bingham Greenbaum Doll LLP
Hall, Partenheimer & Kinkle                              Indianapolis, Indiana
Princeton, Indiana                                       Donald J. Fuchs
                                                         Bingham Greenbaum Doll LLP
                                                         Evansville, Indiana
                                                         Val J. Fleig
                                                         Petersburg, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stephen W. Marvel and                                    May 6, 2016
Debria Marvel,                                           Court of Appeals Case No.
Appellants-Plaintiffs,                                   63A05-1512-PL-2167
                                                         Appeal from the Pike Circuit Court
        v.
                                                         The Honorable Jeffrey L.
                                                         Biesterveld, Judge
Jason Althoff, Erin Althoff and
                                                         Trial Court Cause No.
Gene O. Dorsey,                                          63C01-1504-PL-83
Appellees-Defendants



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016      Page 1 of 9
[1]   Stephen and Debria Marvel filed a complaint in Pike Circuit Court seeking an

      order to compel the partition of certain real estate. Two of the named

      defendants filed a motion to dismiss, which the trial court granted. The Marvels

      appeal and argue that the trial court erred in dismissing their complaint because

      they have a right to have the tenancy partitioned.


[2]   We affirm.

                                      Facts and Procedural History

[3]   The parties in this case are Stephen and Debria Marvel (“the Marvels”), Erin

      and Jason Althoff (“the Althoffs”), and Gene O. Dorsey (“Dorsey”). Erin is the

      Marvels; daughter and, at the time relevant to this appeal, was married to

      Jason.1


[4]   Dorsey held a fee simple title to a 255.63-acre farm (“the Farm”) in Pike

      County, Indiana. Included on this real estate was a house and a garage. On

      February 23, 2007, Dorsey entered into a Contract for Conditional Sale of Real

      Estate (“the Contract”) with the Marvels and the Althoffs (collectively “the

      Buyers”) to sell the Farm for a purchase price of $561,000. Pursuant to the

      Contract, the Buyers paid $100,000 of the purchase price at the time of

      execution, and the remaining $461,000 was to be paid in annual installments of

      $30,733.33, plus interest, on March 1 of each year until March 1, 2017. On this




      1
       Jason and Erin filed for divorce in January 2015, and their dissolution action was pending at the time of the
      present case.

      Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016             Page 2 of 9
      date, the Contract gives Dorsey the right to demand the unpaid balance and

      interest. The Contract provides that the Buyers have the right to prepay the

      purchase price without penalty and that the Buyers are responsible for all

      property taxes and insurance on the Farm.

[5]   The Contract also provides that Dorsey retains a life estate in the residence and

      the garage and that the Buyers will not receive legal title to the Farm until full

      payment of of the purchase price. Dorsey is responsible for normal maintenance

      of the house and garage not to exceed $250 per occurrence, but the Buyers are

      responsible for all maintenance costs in excess of $250. The Contract further

      states that the Buyers may not alter or remove any improvements on the Farm,

      or make any additional improvements, without Dorsey’s prior written consent.

      The Contract also states that the Buyers may not sell or assign their interest in

      the Contract or the property without Dorsey’s prior written consent, nor may

      the Buyers lease or permit others to occupy the farm without Dorsey’s consent.

      The Contract gives the Buyers the right to immediate possession of the Farm,

      save the house and garage, as of February 24, 2007.2


[6]   On April 4, 2014, the Marvels filed a complaint for partition of real estate. The

      complaint sought “an order compelling partition of the [Farm], subject to the




      2
       On April 28, 2008, after the execution of the Contract, Dorsey conveyed his interest in the farm and the
      agreement to the Gene O. Dorsey Trust. Because this does not affect our analysis, we refer to the trust and
      Dorsey as “Dorsey.”

      Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016             Page 3 of 9
      life estate of Gene O. Dorsey as to the residence and garage[.]” Appellant’s

      App. p. 25. The complaint named as defendants the Althoffs and Dorsey.

[7]   Jason Althoff and Dorsey filed a joint motion to dismiss the Marvels’ complaint

      on June 1, 2015, claiming that the Marvels did not have standing to seek

      partition of the farm because they did not share a common interest in the farm

      with Dorsey. The joint motion to dismiss also argued that partitioning the farm

      would deprive Dorsey of his rights under the Contract.3 After various

      responsive filings, the trial court held a hearing on the matter on August 11,

      2015. After considering the parties’ proposed findings and conclusions, the trial

      court entered its own findings and conclusions dismissing the Marvel’s

      complaint on September 25, 2015. The Marvels then filed a motion to correct

      error on October 26, 2015. The trial court denied this motion on November 23,

      2015, and the Marvels now appeal.

                                              Standard of Review

[8]   The standard of review on appeal from a trial court’s grant of a motion to

      dismiss for failure to state a claim is de novo and therefore requires no deference

      to the trial court’s decision. Arflack v. Town of Chandler, 27 N.E.3d 297, 302 (Ind.

      Ct. App. 2015). The grant or denial of a motion to dismiss turns on the legal

      sufficiency of the claim and does not require determinations of fact. Id. In




      3
        After the Marvels responded, Jason Althoff filed an additional motion to dismiss, noting that the Marvels
      had failed to name the real party in interest in their complaint, i.e. the Gene O. Dorsey Trust. The Marvels
      later amended their complaint to address this deficiency.

      Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016             Page 4 of 9
       determining whether any facts will support the claim, we look only to the

       complaint and may not resort to any other evidence in the record. Id.


[9]    To the extent that a trial court, in ruling on a motion to dismiss for failure to

       state a claim, considers matters outside of the pleadings, the motion should be

       treated as one for summary judgment. See Azhar v. Town of Fishers, 744 N.E.2d

       947, 950 (Ind. Ct. App. 2001) (citing Ind. Trial Rule 12(B)). Here, the facts are

       undisputed, and regardless of whether we view the trial court’s ruling as one

       granting a motion to dismiss or granting summary judgment, the matter before

       us is a pure issue of law which we review de novo. See Swanskin v. Town of Ogden

       Dunes, 949 N.E.2d 825, 828 (Ind. 2011) (noting that issues of law are reviewed

       de novo).


                                        Discussion and Decision

[10]   The Marvels claim that the trial court erred in concluding that they could not

       bring a partition action. The Marvels argue that they and the Althoffs are

       tenants in common and that they therefore have standing to bring an action to

       partition their interests as tenants in common. The Marvels refer to Indiana

       Code sections 32-17-4-1 and -2. These statutes provide:


               (a) The following persons may compel partition of land held in
               joint tenancy or tenancy in common as provided under this
               chapter:
                    (1) A person that holds an interest in the land as a joint tenant or
                    tenant-in-common either:
                          (A) in the person’s own right; or
                          (B) as executor or trustee.
       Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016   Page 5 of 9
                    (2) If the sale of the estate of a decedent who held an interest
                    in the land as a joint tenant or tenant in common is
                    necessary, the decedent’s administrator or executor.
               (b) A trustee, an administrator, or an executor may be made a
               defendant in an action for the partition of real estate to answer as
               to any interest the trustee, administrator, or executor has in the
               real estate.

       Ind. Code § 32-17-4-1 (emphasis added).


               (a) A person described in section 1(a) of this chapter may file a petition
               to compel partition in the circuit court or court having probate
               jurisdiction of the county in which the land or any part of the land is
               located.
               (b) A petition filed under subsection (a) must contain the
               following:
                    (1) A description of the premises.
                    (2) The rights and titles in the land of the parties interested.
               (c) At the time a person files a petition under subsection (a), the
               person shall cause a title search to be made regarding the land
               that is the subject of the partition. The person shall file a copy of
               the results of the title search with the court.

       Ind. Code § 32-17-4-2 (emphasis added).


[11]   The Marvels read these statutes to mean that they may petition the trial court to

       partition the farm because they and the Althoffs are tenants in common.

       However, this matter is not quite that simple.


[12]   First, the Marvels and the Althoffs do not yet have legal title to the farm.

       Indeed, they admit that, as purchasers of real estate on contract, they have only

       equitable title to the farm. See Area Plan Comm’n, Evansville-Vanderburgh Cnty. v.

       Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016   Page 6 of 9
       Hatfield, 820 N.E.2d 696, 699 (Ind. Ct. App. 2005) (noting that once a contract

       for the sale of land is executed, equitable title vests with the buyer), trans. denied;

       UFG, LLC v. Sw. Corp., 784 N.E.2d 536, 541 (Ind. Ct. App. 2003) (noting that

       under a typical land contract, the seller retains legal title until the total contract

       price is paid by the buyer but that equitable title vests in the buyer at the time

       the contract is consummated), trans. denied.


[13]   We recognize that it has long been held in this state that a party seeking

       partition must have the right to possession of the land and hold either legal or

       equitable title. Hurwich v. Zoss, 170 Ind. App. 542, 544, 353 N.E.2d 549, 550-51

       (1976); Helvey v. O’Neill, 153 Ind. App. 635, 641, 288 N.E.2d 553, 557 (1972);

       McClure v. Raber, 106 Ind. App. 359, 19 N.E.2d 891, 894 (1939); Schissel v.

       Dickson, 129 Ind. 139, 28 N.E. 540, 543 (1891). Thus, the fact that the Marvels

       and Althoffs possess only an equitable title does not by itself disqualify the

       Marvels from seeking partition.


[14]   However, given Dorsey’s contractual right to regain the right to possession of

       the Farm in the case of default on the part of the Buyers, it would be odd to

       allow the Marvels to partition real estate to which they do not yet even hold

       legal title. Indeed, partition often leads to a sale of the property, yet the Marvels

       do not yet hold legal title to the Farm. Thus, their position would allow them to

       force the sale of land for which they do not hold legal title.


[15]   More important, however, is the fact that the Marvels and Althoffs do not enjoy

       the right to possess the entire farm because Dorsey, in addition to holding legal


       Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016   Page 7 of 9
       title to the farm, still holds a life estate in the house and garage on the farm.

       Accordingly, the Marvels and Althoffs are the remaindermen of the house and

       garage. See Piel v. Dewitt, 170 Ind. App. 63, 70, 351 N.E.2d 48, 53 (1976) (noting

       that the death of the life tenant is the customary means for ending a life estate

       and conferring possessory rights upon the remainderman). It has long been the

       case in Indiana that “partition can not be adjudged between remainder-men

       during the existence of a life-estate.” Shaw v. Beers, 84 Ind. 528, 529 (1882)

       (citing Coon v. Bean, 69 Ind. 474, 476 (1880); Schori v. Stephens, 62 Ind. 441, 448

       (1878)).

[16]   What the Marvels wish to do is to partition the interests of the tenants in

       common of the equitable title to the farm but leave Dorsey’s life estate

       unchanged. As noted, the Marvels and Althoffs hold not only the equitable title

       to the farm as tenants in common, they are also the remaindermen of the life

       estate reserved by Dorsey. To allow the Marvels to partition the Farm would be

       to permit them to partition land for which they do not yet have a possessory

       right, the house and garage. The Marvels refer us to no authority that would

       permit them to “partially” partition the farm, i.e., partition the parts in which

       they have a possessory interest, yet leave the house and garage untouched by

       the partition. For this reason alone, we believe the trial court’s judgment was

       proper.

[17]   Moreover, as noted by the trial court, the Contract itself provides that the

       Marvels and Althoffs (as the buyers) may not “sell or assign this Contract,

       Buyer’s interest therein or Buyer’s interest in the Real Estate, without the prior written

       Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016   Page 8 of 9
       consent of Seller.” Appellant’s App. p. 159 (emphasis added). Partitioning the

       farm would be contrary to this provision. Indeed, the partition statutes

       contemplate that the real property to be partitioned may ultimately have to be

       sold at a judicial auction if the parties are unable to agree. See Ind. Code § 32-

       17-4-2.5(d), (g) (providing that, if the parties are unable to agree in mandatory

       mediation as to the method of sale, the court shall order an agreed-to auctioneer

       or the sheriff to sell the land). To permit the sale of the farm without Dorsey’s

       consent would be in direct violation of the terms of the Contract.


                                                  Conclusion

[18]   The trial court did not err in concluding that the Marvels do not have the right

       to force partition of the Farm because Dorsey possesses not only the legal title

       to the Farm, but also a possessory right of a life estate in the house and garage

       located on the Farm. Moreover, to partition the Farm would be contrary to the

       provisions of the Contract entered into between the Marvels and the Althoffs as

       Buyers and Dorsey as the seller. Accordingly, we affirm the judgment of the

       trial court.


[19]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 63A05-1512-PL-2167 | May 6, 2016   Page 9 of 9
