Dotson v. Cook

435 S.E.2d 910, 190 W. Va. 54, 1993 W. Va. LEXIS 70
CourtWest Virginia Supreme Court
DecidedMay 25, 1993
DocketNo. 21503
StatusPublished

This text of 435 S.E.2d 910 (Dotson v. Cook) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dotson v. Cook, 435 S.E.2d 910, 190 W. Va. 54, 1993 W. Va. LEXIS 70 (W. Va. 1993).

Opinion

MILLER, Justice:

The Circuit Court of Logan County, by order entered October 7, 1992, certifies the following questions to this Court:

“(1) Where tenants in common own separate tracts of land in Logan and Wyoming Counties, does the Circuit Court of Logan County in a civil action filed pursuant to West Virginia Code Section 37-4-1, have jurisdiction to order partition of not only the tracts in Logan County, but also the tracts in Wyoming County?”
“(2) If the answer to No. 1 is yes, then does the Circuit Court of Logan County have jurisdiction to decide questions concerning the status of the title to the Wyoming County Properties?”

The circuit court answered both questions in the affirmative. We agree, as explained below.

The underlying case, a partition action, arises from the death of William Thomas Cook, Jr., who died intestate in May of 1990. At the time of his death, Mr. Cook was a resident of Logan County, and his estate is being administered in Logan County. He owned three parcels of real estate, one situated in Logan County and the other two located in Wyoming County. The Logan County parcel is not contiguous to the Wyoming County parcels.

On February 27, 1992, Sarah E. Dotson, the plaintiff below and an heir to Mr. Cook’s estate, filed the underlying complaint seeking partition of the three parcels. The complaint noted that the parcels could not be conveniently partitioned in kind because of the large number of heirs. (The complaint [55]*55names over fifty heirs, exclusive of spouses.) The complaint also noted that there was some question as to the title of one of the parcels located in Wyoming County.1

By order entered July 29,1992, the Circuit Court of Logan County ordered the Logan County parcel sold and the proceeds, minus costs, distributed among the heirs. In regard to the two parcels located in Wyoming County, however, the circuit court stated that it would take time to consider whether it had jurisdiction to order partition of those properties. Thereafter, the circuit court certified the aforementioned questions to this Court.

Answers to the questions certified are controlled by the jurisdictional requirement mandated by W.Va.Code, 87-4-1 (1989), which states, in pertinent part:

“Tenants in common ... of real property ... shall be compelled to make partition, and the circuit court of the county wherin [sic ] the land or estate, or any part thereof, may be, shall have jurisdiction, in eases of partition, and in the exercise of such jurisdiction, may take cognizance of all questions of law affecting the legal title, that may arise in any proceedings.”2

Thus, under our partition statute, W.Va. Code, 37-4-1, a partition suit may be filed in the circuit court of the county wherein the land or estate, or any part thereof, is located. The question that then must be answered in this case is whether the foregoing language covers the situation where the land to be partitioned lies in separate tracts in two different counties. Certainly, the foregoing language does not foreclose an interpretation whereby the circuit court of one county could partition all parcels, so long as one parcel is located in that county. To foreclose such an interpretation, the legislature would have used more precise language.

Indeed, other states with partition statutes similar to our own have concluded that when separate parcels are in two different counties, a partition suit may be brought in either county and that court will have jurisdiction to dispose of all parcels. The Supreme Court of New Hampshire in McCauley v. Brooks, 84 N.H. 207, 147 A. 898 (1929), interpreted its partition statute,3 which read, like our own partition statute, that a partition action could be instituted “in the county in which the estate or any part thereof lies.” 84 N.H. at 207, 147 A. at 898. The court stated that it was “[t]he manifest intent of the statute ... that county lines shall not divide jurisdiction in partition proceedings.... It was not the purpose of the statute to pút the parties to the expense and inconvenience of separate proceedings where separate parcels, all parts of one estate, he in different counties.” 84 N.H. at 207, 147 A. at 898.

In Roessner v. Mitchell, 122 Md. 460, 463, 89 A. 722, 723 (1914), the Court of Appeals of Maryland interpreted a partition statute which provided that “if the lands he partly in one county and partly in another, ... then such proceedings may be commenced in either county,”4 and stated:

“We do not construe this language as it is construed by the appellant to apply only in those cases where the lands situated in the different counties are contiguous and together form one tract or parcel of land. The language used should be given a wider and more comprehensive meaning. The purpose of the statute was to avoid a multiplicity of suits and the costs and expenses of such suits. If the appellant’s construction is to be placed upon the statute, it would apply only to a very small number of cases. In the great number of cases, where the lands in the different counties [56]*56form separate and distinct tracts, proceedings would have to be instituted in each county in which the land is situated, which would be attended with much cost and expense. This we think was not the intention of the Legislature as expressed by the statute. In our opinion, the meaning of the language of the statute is that, if all the lands to be affected by the suit are not situated in one county ...,-but some of them are in one county and some in one or more of the other counties, ... then such proceedings may be commenced in either county ... where any part of said land is situated[.]” 122 Md. at 463-64, 89 A. at 723.

Likewise, the Supreme Court of California in Middlecoff v. Cronise, 155 Cal. 186, 188, 100 P. 232, 234 (1909), stated:

“It is thoroughly established that partition may be had in one action of two or more tracts or parcels of land, and the fact that such tracts are situated in different counties cannot affect this right; the action being maintainable in such a case in any county in which a part of the property is situated. See Murphy v. Supreme Court, 138 Cal. 69, 70 Pac. 1070 [(1902)].”5

See also Berry v. Berry, 266 Ala. 252, 95 So.2d 798 (1957); Murguiondo v. Hoover, 72 Md. 9, 18 A. 907 (1889); Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20 (1925). See generally 59A Am.Jur.2d Partition § 107 (1987); 68 C.J.S. Partition § 68 (1950).

It is clear that the majority of jurisdictions interpreting partition statutes similar to our own conclude that such statutes allow, a single action to be brought to partition lands held by the parties even though the property lies in more than one county.6 Such jurisdiction is not based upon a finding that the lands so situated are contiguous or part of a single tract or parcel.

In all the foregoing cases, the partition suit sought the sale of the property rather than a partition in kind. A sale is also the relief prayed for in this case. In this situation we are aided by W.Va.Code, 55-12-1 (1923), our general statute relating to judicial sales, which contains, in part, the following language:

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Related

Berry v. Berry
95 So. 2d 798 (Supreme Court of Alabama, 1957)
Buschmeyer v. Eikermann
378 S.W.2d 468 (Supreme Court of Missouri, 1964)
Pollard v. Jackson
85 So. 431 (Supreme Court of Alabama, 1920)
Murphy v. Superior Court
70 P. 1070 (California Supreme Court, 1902)
Middelcoff v. Cronise
100 P. 232 (California Supreme Court, 1909)
Johnston v. Burton
11 So. 2d 513 (Supreme Court of Louisiana, 1942)
Roessner v. Mitchell
89 A. 722 (Court of Appeals of Maryland, 1914)
McCauley v. Brooks
147 A. 898 (Supreme Court of New Hampshire, 1929)
Clark v. . Homes
128 S.E. 20 (Supreme Court of North Carolina, 1925)
King v. Ambrose
81 A. 714 (Supreme Court of Pennsylvania, 1911)
Clark v. Carolina Homes, Inc.
189 N.C. 703 (Supreme Court of North Carolina, 1925)
de Murguiondo v. Hoover
18 A. 907 (Court of Appeals of Maryland, 1889)
Laidley v. Reynolds
52 S.E. 405 (West Virginia Supreme Court, 1905)

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Bluebook (online)
435 S.E.2d 910, 190 W. Va. 54, 1993 W. Va. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dotson-v-cook-wva-1993.