FINAL COPY
294 Ga. 496



                           S13A1338. PACK v. MAHAN.


       BLACKWELL, Justice.

       This is an appeal from an order directing the equitable partition by sale of

3.503 acres in Union County, real property in which appellant Brittany Pack and

appellee Sidney C. Mahan, Jr., both have interests as tenants in common. Mahan

sought the equitable partition and sale of the property, and in response to his

petition, Pack urged that statutory partition was an adequate remedy and that the

property should be divided by metes and bounds. Following an evidentiary

hearing, the trial court concluded that the property could not be fairly divided

by metes and bounds, and it granted the petition for an equitable division by

sale. Pack appeals,1 and we agree with her that the order of the trial court is

nominally erroneous, insofar as statutory partition is an adequate remedy in this

case and no peculiar circumstances require an equitable partition. But even in


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        The order that the property be sold was final and appealable, see Lassiter Properties
v. Gresham, 258 Ga. 500, 501 (1) (371 SE2d 650) (1988), and appeals from orders of
equitable and statutory partition alike come within our appellate jurisdiction in cases
involving title to land. Ononye v. Ezeofor, 287 Ga. 201, 201 (1) (695 SE2d 234) (2010).
a statutory partition, a court may order the sale of property that cannot be fairly

divided by metes and bounds, and we see no error in the finding that the

property here cannot be fairly divided. Accordingly, we affirm the direction that

the property be sold, but we vacate the judgment to the extent that it purports to

order the sale as an equitable (rather than a statutory) partition, and we remand

for the court to conform its judgment to the requirements for a statutory

partition.

      Georgia distinguishes between “equitable” partition, OCGA § 44-6-140

et seq., and “statutory” partition, OCGA § 44-6-160 et seq. See Burnham v.

Lynn, 235 Ga. 207 (219 SE2d 111) (1975). See also Hart v. Hart, 245 Ga. App.

734, n. 2 (538 SE2d 814) (2000). This nomenclature, however, has led to some

confusion, insofar as equitable and statutory partitions alike must account for

certain equities. In a statutory partition,

      a court is authorized to divide commonly owned land under OCGA
      § 44-6-160, or if a party in interest convinces the court that the land
      cannot be divided fairly, the land may be appraised and a party in
      interest given the opportunity to purchase the petitioner’s share
      before a public sale is ordered. OCGA § 44-6-166.1. Alternatively,
      land may become subject to public sale under OCGA § 44-6-167 if
      it is not sold pursuant to the procedure set out in OCGA § 44-6-
      166.1 or if a petitioner convinces the court that a fair and equitable
      division of the property cannot be made by means of metes and

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      bounds because of improvements on the property, because the
      premises are valuable for mining purposes or for the erection of
      mills or other machinery, or because the value of the entire property
      will be depreciated by the partition applied for.

Jacobs v. Young, 291 Ga. 778, 779-780 (1) (a) (732 SE2d 69) (2012) (citation,

punctuation and footnote omitted). As we have explained, in a statutory

partition, “the court may frame its proceeding and order so as to meet the

exigency of the case without forcing the parties into equity; and the court may

deny a sale or partition altogether if it is manifest that the interest of each party

will not be fully protected.” OCGA § 44-6-170. See also Jacobs, 291 Ga. at 779,

n. 1. So, even proceedings for a statutory partition sometimes “partake of the

nature of proceedings in equity.” Waycross Military Assn. v. Hiers, 209 Ga. 812,

814 (3) (76 SE2d 486) (1953). “This allows certain equities between tenants in

common to be taken into consideration in making a partition, and doubtless

would authorize one holding a perfect equity to have a partition without first

proceeding by equitable petition.” Cock v. Callaway, 141 Ga. 774, 780 (3) (82

SE 286) (1914) (discussing a predecessor statute virtually identical to OCGA §

44-6-170).




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      The allowance for certain equitable considerations in statutory partitions,

however, “was not intended to make the statutory proceeding a substitute in all

cases for partition by a court with equitable cognizance, or to deal with all the

rights which might be asserted in every case by an equitable proceeding; since

the Code preserves the right of equitable partition . . . .” Cock, 141 Ga. at 780

(3). See also Hiers, 209 Ga. at 814 (3). “Equity has jurisdiction in cases of

partition whenever the remedy at law is insufficient or peculiar circumstances

render the proceeding in equity more suitable and just.” OCGA § 44-6-140. See

also Larimer v. Larimer, 249 Ga. 500 (292 SE2d 71) (1982). Such peculiar

circumstances may include a need to adjust the accounts or claims of the

cotenants, Coker Properties v. Brooks, 278 Ga. 638, 640 (1) (604 SE2d 766)

(2004), a complexity of interests held by both resident and nonresident

cotenants, Chaney v. Upchurch, 278 Ga. 515, 516 (1) (603 SE2d 255) (2004),

and a claim against a former spouse for fair rental value, Larimer, 249 Ga. at

500. See also 3A K. Morgan Varner III & Robert H. Turner III, Georgia

Jurisprudence Property § 33:13 (courts of equity are empowered, among other

things, “to settle the rights of collaterally interested parties brought into the

proceedings as defendants, to protect the interest of absent parties presumed

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dead,” and “to protect [by] appropriate decree the interest of all parties by

unraveling complicated factual situations involving joint ownership of

improvements, insolvency, foreclosure and purchase of assets, and the

continuation of business”).

      Here, the trial court nominally awarded equitable relief, but no peculiar

circumstances appear in this case that render statutory partition inadequate,

unsuitable, or unjust. The reasons given in the petition for an equitable partition

— “that this equitable suit is necessary to avoid a multiplicity of actions, to

obtain the best price for the land, and to afford a better, more efficient, simpler,

and less expensive manner of partition [—] are mere conclusions of the pleader

with no [other] allegations or evidence to support them.” Gifford v. Courson,

224 Ga. 840, 841 (165 SE2d 133) (1968). At the hearing on the petition, the

factual disputes concerned only whether the property could be fairly divided by

metes and bounds. Because Mahan contended that the property cannot be so

divided, he insisted that it be sold. Because Pack asserted that it can be fairly

divided, she urged a physical division. Neither position precluded a statutory

partition. To the contrary, the statutes governing statutory partition provide that

the petitioner may seek division in kind or a sale of the property. See Jacobs,

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291 Ga. at 779-780 (1) (a). In particular, an allegation or evidence that the

property cannot be partitioned by metes and bounds does not make the

proceeding an equitable one for partition. See Brinson v. Thornton, 220 Ga. 234,

236 (1) (138 SE2d 268) (1964). See also Cheeves v. Lacksen, 273 Ga. 549, 550-

551 (2) (544 SE2d 425) (2001). Ordinarily, therefore, statutory partition is an

adequate remedy at law, see Stone v. Benton, 258 Ga. 539, 540 (371 SE2d 864)

(1988), and in the absence of “peculiar circumstances,” equitable partitioning

is not appropriate. See Gifford, 224 Ga. at 841 (“unless for some special reason

equitable jurisdiction is applicable, a party seeking the writ of partition is

required to resort to the remedy afforded by the statute”) (citations and

punctuation omitted). Because Mahan failed to show that the remedy at law was

insufficient or that peculiar circumstances render the equitable proceeding more

suitable and just, the court below erred when it nominally awarded an equitable

partition to Mahan. Burnham, 235 Ga. at 208.

      That nominal error does not mean that the entire judgment must be set

aside, however, because it appears that the court below actually awarded a legal

remedy. See Cheeves, 273 Ga. at 551 (2). When the court entered judgment

against Pack, finding that the land is not capable of division in kind and that it

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should be sold, Mahan “obtained no equitable relief, but only that which would

have been awarded [him] in a statutory proceeding for partition.” Nixon v.

Nixon, 197 Ga. 426, 432 (1) (29 SE2d 613) (1944). Indeed, because the Civil

Practice Act provides for “one form of action,” OCGA § 9-11-2, if the petition

states a claim for either equitable or statutory partitioning, a court having the

requisite jurisdiction and venue is authorized to proceed with a just and prompt

determination of the action, regardless of whether the true nature of the partition

is equitable or statutory. Sikes v. Sikes, 233 Ga. 97, 98 (209 SE2d 641) (1974).

See also Lathem v. Hestley, 270 Ga. 849, 851 (514 SE2d 440) (1999). Cf.

Ononye v. Ezeofor, 287 Ga. 201, 202 (2) (695 SE2d 234) (2010) (“Even when

a party files a statutory partition action, the trial court has the discretion to apply

equitable partitioning principles if the circumstances of the case warrant the

assumption of equitable jurisdiction.”) (citations omitted).

      In concluding that the property should be sold, the court below committed

no error. Pack has conceded that she does not have the financial resources to

secure ownership of the entire property for herself, so she could not avail herself

of the statutory remedy in OCGA § 44-6-166.1. As for the remaining remedies

of partition in kind and a court-ordered sale without consent, “[p]artition in kind

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is the rule, and should be followed if it can be done without pecuniary damage.

Sentimental considerations should have great weight, especially in the

preservation of the home, but pecuniary interests should be the determining

factor.” Anderson v. Anderson, 27 Ga. App. 513, 515 (6) (108 SE 907) (1921)

(citations omitted). But there is no home or other improvement on this property.

Mahan presented the testimony of two real estate agents, both of whom said that

the property would be best sold as one tract. Their testimony, together with that

of Pack’s uncle (a developer and homebuilder), indicated that dividing the

property would be difficult because of associated costs and certain topographical

features, including a street, a creek, a power line, a right-of-way, a marshy area,

a buffer, and a set-back. In support of her argument that division in kind is an

appropriate remedy, Pack pointed to other testimony of her uncle, as well as the

testimony of herself and her father, based on their experience as real estate

brokers. And each party attacked the credibility of the other’s witnesses. The

probative value of the opinion testimony was entirely for the trial judge as trier

of fact, who could form his own conclusion and rely upon his own opinion,

provided that the evidence was sufficient to enable him to do so. Id. at 514 (4).

“Evidence both pro and con was introduced on the matter of whether a fair and

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equitable division in kind could be made of the property, raising a factual issue”

that the court below resolved against Pack. Wilkerson v. Wilkerson, 126 Ga.

App. 172, 172 (2) (190 SE2d 140) (1972). Where, as here, the physical

topography of the land and the presence or absence of improvements are in

evidence, along with opinions of the relative value of the premises as a whole

or in division, “the trial judge can form his own opinion and order a sale or

division by means of metes and bounds, as in his opinion will be to the best

pecuniary interests of those concerned.” Anderson, 27 Ga. App. at 514 (4)

(citations omitted).

      The findings of the trial court are supported by the evidence, and despite

its misplaced references to OCGA § 44-6-140 and the intervention of equity,

those findings show, in accordance with the statutory partition provisions, that

the trial court was convinced “that a fair and equitable division of the property

cannot be made by means of metes and bounds . . . because the value of the

entire property will be depreciated by the partition applied for,” OCGA § 44-6-

166.1 (b), and that it is not “manifest that the interest of each party will not be

fully protected” by a sale, OCGA § 44-6-170. With regard to the latter, we note

that there is no basis for the concerns expressed by Pack as to the likelihood of

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harm from a sale that is forced by court order. If a property is ordered to be sold

pursuant to the statutory partition provisions and does not bring its fair market

value for any reason, the parties’ rights “are protected by the right to object to

confirmation of such sale.[2] If the matter urged in the objections be such as to

show the sale to have been unfair or inequitable to the parties, the court will

refuse to confirm it and order a resale.” Lankford v. Milhollin, 200 Ga. 512, 517

(2) (37 SE2d 197) (1946) (citation and punctuation omitted). See also Oswald

v. Johnson, 140 Ga. 62, 63-64 (73 SE 333) (1913) (extensively explaining the

basis for requiring confirmation of a sale resulting from a statutory partition

proceeding).

       Because the evidence in this case supports the findings of the court below,

and because Pack could not purchase Mahan’s interest, the court did not err

when it ordered a public sale of the property. See OCGA § 44-6-167 (“In the

event lands and tenements sought to be partitioned are not sold pursuant to Code

Section 44-6-166.1, the court shall order a public sale of such lands and

tenements.”); Wilkerson, 126 Ga. App. at 172-173 (2) (“On appeal the evidence

       2
         We note that sales under decrees in equitable partition proceedings are also subject
to confirmation. See OCGA § 23-4-35; Brannon v. Simpson, 244 Ga. 58, 60 (257 SE2d 541)
(1979).

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is to be construed in a manner that will uphold rather than overturn the judgment

of the trial court.”); Anderson, 27 Ga. App. at 515 (6) (“An adjudication by a

trial court, after hearing the evidence, that the conditions require a sale on a

petition for partition, and that the lands and tenements in question cannot be

partitioned by means of metes and bounds without depreciation in value, is

entitled to great weight.”). For that reason, we affirm the order that the property

be sold. Nevertheless, we vacate those portions of the judgment in which the

court purported to award equitable relief and in which it set forth the procedure

governing the sale of the property without requiring compliance with OCGA §

44-6-167. And we remand the case for entry of a judgment that does not refer

to OCGA § 44-6-140 and the intervention of equity and that orders a public sale

— under such regulations and on such just and equitable terms as the court

below may prescribe — after appointment of commissioners and advertisement

as provided in OCGA § 44-6-167. See Brannon v. Simpson, 244 Ga. 58, 61 (257

SE2d 541) (1979).

      Judgment affirmed in part and vacated in part, and case remanded with

direction. All the Justices concur.



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                   Decided February 24, 2014.

Title to land. Union Superior Court. Before Judge George.

Bruce W. Phillips, for appellant.

David E. Barrett, for appellee.




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