Glenn v. Gresham

602 S.W.2d 256, 1980 Tenn. App. LEXIS 360
CourtCourt of Appeals of Tennessee
DecidedJune 3, 1980
StatusPublished
Cited by15 cases

This text of 602 S.W.2d 256 (Glenn v. Gresham) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glenn v. Gresham, 602 S.W.2d 256, 1980 Tenn. App. LEXIS 360 (Tenn. Ct. App. 1980).

Opinion

EWELL, Judge.

This is an appeal from a chancery order in a partition suit confirming the report of the Clerk and Master and ordering the sale of real estate for partition pursuant to the motion of plaintiff.

Plaintiff owns a one-half undivided interest in a tract consisting of 138 acres located in the Seventh Civil District of Fayette County, Tennessee. Defendants James William Gresham and wife, Deloris N. Gresham, are owners of the other one-half undivided interest as tenants in common with plaintiff. In her “Complaint for Partition of Real Property” plaintiff alleges that the tract “is capable of being advantageously partitioned among the parties entitled”; and she prays “that if a partition of said land be found impractical or unadvisable, . the land be sold and the proceeds of sale partitioned according to the interests of the parties”. The defendants in their answer admit that the real estate “can be partitioned among the parties by either a [257]*257sale or partition in kind”. Subsequently plaintiff filed a motion seeking entry of a decree for sale and division of proceeds for the reasons that (1) the premises are so situated that partition thereof cannot be made, and (2) the premises are of such description that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned.

In response to plaintiff’s motion the Chancellor entered an order of reference to the Master which provided, in part, as follows:

It appearing that the plaintiff in this cause has filed a motion requesting a sale of property for partition and that the facts of this matter are not sufficiently appearing for a determination at this time,
IT IS, THEREFORE, ORDERED AND DECREED BY THE COURT:
(1) That this matter be and is hereby referred to the Master to hear proof and take such other steps as he deems necessary to make a determination and report to this Court by 60 days as to the following matters:
(a) . . .
(b) Whether the premises are so situated that partition thereof cannot be equitably made, or whether they are of such description that it would be manifestly for the advantage of the parties that the same should be sold, instead of partitioned.
(c) . . .

Approximately sixty days later the Clerk and Master filed a report stating, in pertinent parts, as follows:

I have considered the proof which constitutes the pleadings of all the parties and other available data, and report as follows:
(a) • • •
(b) The premises are so situated that partition thereof cannot be equitably made. The principal reason for this is the fact that a large lake occupies much of the property and this makes it very difficult to make a proper division thereof.
(c) . . .

Plaintiff filed a motion to confirm the report and order a sale of the real estate; and defendants filed exceptions to the above quoted portion of the report stating:

Defendants except thereto because no proof was taken as to the value of the lake with reference to the remainder of the tract of land and without this valuation no decision could be made as to the advisability of a partition in kind.
Defendants further except to the failure on the part of the Clerk and Master to hear proof and give them an opportunity to testify and produce witnesses to show that the tract of land could be divided in kind between the respective owners.

The matter was heard by the Chancellor who entered the following order:

This matter came on to be heard on the 13th day of August, 1979, upon the report of the Clerk and Master on order of reference, exceptions to said report filed by defendant, Motion to Confirm Master’s Report, Exhibit 1 of the defendants (a plat or map of the subject property), and statements of counsel for the respective parties, from all of which it appears that the Report of the Master should be confirmed.
IT IS, THEREFORE, ORDERED AND DECREED that the Report of the Clerk and Master heretofore filed in this cause be, and the same is hereby, approved in all respects and the Clerk and Master is hereby ordered to sell said property for cash to the highest and best bidder after publication as required by law, which publication shall commence immediately upon the expiration of time for perfecting appeal, or if an appeal is perfected, upon the conclusion of same.

On appeal defendants insist that the Chancellor erred in overruling their exceptions and ordering a sale for partition inasmuch as the Clerk and Master reported without holding an evidentiary hearing and filed no transcript of the proceedings, evidence and original exhibits pursuant to [258]*258Rule 53.04(1) of the Tennessee Rules of Civil Procedure.

It is well settled that where real estate can be partitioned in kind among the parties interested, it should not be sold for division but should be partitioned in kind. Baumgartner v. Baumgartner, 17 Tenn.App. 305, 67 S.W.2d 154 (1933, cert. den. 1933); Gibson’s Suits in Chancery, Section 1105 (5th ed. 1956). A sale for division will be ordered only if the premises are so situated that partition thereof cannot be made or where the premises are of such description that it would be manifestly for the advantage of the parties that the same be sold instead of partitioned. T.C.A. 23-2128 and Gibson’s Suits in Chancery, Section 1112 (5th ed. 1956). If either of the foregoing conditions exist, a sale is justified. Partition in kind is required only where neither condition exists. Medley v. Medley, 61 Tenn.App. 331, 454 S.W.2d 142 (1969, cert. den. 1970). The burden of proof is on him who seeks the sale. Reeves v. Reeves, 58 Tenn. 669, 11 Heiskell 546 (1872); Wilson v. Bogle, 95 Tenn. 290, 11 Pickle 219 (1895); Vanderberg v. Molder, 4 Tenn.Civ.App. (Higgins) 111 (1913).

In this case the Clerk and Master concluded and reported that “the premises are so situated that partition thereof cannot be equitably made”; and the Chancellor concurred in and affirmed that report. Findings of fact by the Master concurred in by the Chancellor are conclusive on appeal if supported by any material evidence. Maple Manor Hotel, Inc. v. Metro. Gov’t Etc., 543 S.W.2d 593 (Tenn.App.1975, cert. den. 1976); Wilson v. Bogle, supra. If the report of the Master concurred in by the Chancellor was not supported by material evidence, the Chancellor erred in ordering a sale. Davidson v. Bowden, 37 Tenn. 129, 5 Sneed 72 (1857); Bradberry v. Martin, 3 Tenn.Cas. (Shannon) 469 (1875); Gibson’s Suits in Chancery, Section 1115 note 23, page 414 (5th ed. 1956).

The order of reference in this case specifically directed the Clerk and Master “to hear proof”.

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Bluebook (online)
602 S.W.2d 256, 1980 Tenn. App. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glenn-v-gresham-tennctapp-1980.