Morton v. Unknown Heirs of Van Camp

654 S.E.2d 621, 221 W. Va. 299, 2007 W. Va. LEXIS 97
CourtWest Virginia Supreme Court
DecidedNovember 9, 2007
DocketNo. 33341
StatusPublished
Cited by1 cases

This text of 654 S.E.2d 621 (Morton v. Unknown Heirs of Van Camp) 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
Morton v. Unknown Heirs of Van Camp, 654 S.E.2d 621, 221 W. Va. 299, 2007 W. Va. LEXIS 97 (W. Va. 2007).

Opinions

PER CURIAM:

The appellant, Linda Kessler Archer, appeals from the September 18, 2006, order of the Circuit Court of Kanawha County, which directed the sale of real property wherein she owns an undivided one-seventh interest in the property. Based upon the parties’ briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.

I.

FACTUAL AND PROCEDURAL HISTORY

On October 20, 2005, the appellees, Bill E. Morton and Jess R. Morton, filed a complaint seeking to sell 25.5 acres of undeveloped land in Cross Lanes, West Virginia. The appel-lees own an undivided six-sevenths interest of the property, while the appellant, Linda Kessler Archer, owns a one-seventh undivided interest in the property. The appellant and her daughter currently reside on the land in a mobile home and desire to remain living there. The appellees seek to develop the land and state that the only viable entrance is through the portion of property on which the appellant and her daughter reside, making it nearly impossible for development of the residue of the land.

The appellant has resided on the property for much of her lifetime as she grew up living there with her parents, siblings, and grandmother in a house her parents built. When that house burnt, she continued to reside on the property in a mobile home. The appellant, however, has not continuously lived on the property as she lived in Florida for several years before returning to reside on the property approximately seven years prior to this litigation. After returning to West Virginia to live on the property, the appellant testified that she sold timber from the land without sharing any of the proceeds with the appellees.

On September 18, 2006, the Circuit Court of Kanawha County ordered the property to be sold by a Special Commissioner and to distribute the sale proceeds among the parties pursuant to their ownership interest. The circuit court concluded that, “if Ms. Archer, who only has one-seventh interest in the subject real estate, received the 3.64 acres by partition, the remaining owners would receive much less valuable land and would be required to expend substantial sums of money to place the remaining acreage in a position whereby the acreage could [301]*301be developed for residential purposes.” Subsequently, the appellant, who is the only party objecting to the sale of the land, filed an appeal of the circuit court’s order with this Court.

II.

STANDARD OF REVIEW

As we explained in Syllabus Point 1 of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996), appellate oversight of the findings and conclusions of the circuit court made after a bench trial entails a two-pronged deferential standard of review. We held that: “The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.” Id. With these standards in mind, we now consider the issues presented in this case.

III.

DISCUSSION

In this case, the appellees seek to sell a 25.5 acre parcel of land in which they own an undivided six-sevenths interest. Conversely, the appellant, who owns a one-seventh undivided interest in the property, maintains that the property can be conveniently partitioned in-kind. She states that the interests of the other parties will not be prejudiced by the partition since the one-seventh share she is seeking will not interfere with a developer wanting to maximize the use of the property. The appellant further argues that she is not interested in monetary gain in selling the property and is only concerned with being allowed to continue living on the land.

The appellant points out that in Ark Land Company v. Harper, et. al., 215 W.Va. 331, 599 S.E.2d 754 (2004), this Court dealt with a dispute concerning 75 acres of land owned by a family for approximately 100 years. In that case, a dispute arose after the Ark Land Company purchased 67.5% undivided interest in the property. Ark Land sought to sell the entire parcel of land, while the family objected to the sale and requested a partition in kind. The appellant states that in Ark Land, this Court explained that “we [were] troubled by the circuit coui’t’s conclusion that partition by sale was necessary because the economic value of the property would be less if partitioned in kind.” This Court further stated that, “we have long held that the economic value of property may be a factor to consider in determining whether to partition in kind or to force a sale ..., [h]owever, our cases do not support the conclusion that economic value of property is the exclusive test for determining whether to partition in kind or to partition by sale.” 215 W.Va. at 337, 599 S.E.2d at 760. The appellant then cites Syllabus Point 3 of Ark Land, wherein this Court held:

In a partition proceeding in which a party opposes the sale of property, the economic value of the property is not the exclusive test for deciding in whether to partition in ldnd or by sale. Evidence of longstanding ownership, coupled with sentimental or emotional interests in the property, may also be considered in deciding whether the interests of the party opposing the sale will be prejudiced by the property’s sale. This latter factor should ordinarily control when it is shown that the property can be partitioned in ldnd, though it may entail some economic inconvenience to the party seeldng a sale.

The appellant further argues that it is her common law right to keep her portion of land where she has lived for most of her life. She states that none of the co-owners have lived on the property and that sale of the land will create undue hardship on her as she will have to find another place to live. The appellant contends that the circuit court’s decision should be reversed and that upon remand a commissioner should be appointed to determine the location and amount of land that, in his or her opinion, would adequately represent a one-seventh value of the whole in order that she may maintain her homestead.

The appellees respond that the circuit court properly ordered the sale of the property. They explain that W.Va.Code § 37-4-3, in part, provides:

[302]*302[I]n any case in which partition cannot be conveniently made, if the interests of one or more of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, and the interest of the other person or persons so entitled will not be prejudiced thereby, the court, notwithstanding the fact that any of those entitled may be an infant, insane person, or convict, may order such sale, or such sale and allotment, and make distribution of the proceeds of sale.

They further point out Syllabus Point 3 of Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978), wherein this Court held:

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Related

Morton v. UNKNOWN HEIRS OF VAN CAMP
654 S.E.2d 621 (West Virginia Supreme Court, 2007)

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654 S.E.2d 621, 221 W. Va. 299, 2007 W. Va. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-v-unknown-heirs-of-van-camp-wva-2007.