IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00402-COA
THERESA LAND APPELLANT
v.
MICHAEL LAND APPELLEE
DATE OF JUDGMENT: 03/04/2021 TRIAL JUDGE: HON. JAMES CHRISTOPHER WALKER COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PAUL E. ROGERS ATTORNEY FOR APPELLEE: MACY DERALD HANSON NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 03/15/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., LAWRENCE AND EMFINGER, JJ.
EMFINGER, J., FOR THE COURT:
¶1. After moving out of the marital residence and being denied a divorce by the Madison
County Chancery Court, Theresa C. Land filed a complaint for the partition by sale of two
parcels of real property that she jointly owned with her husband, Michael D. Land. One
parcel was the marital residence, and the other parcel was commercial property. The
chancellor granted the petition as to the commercial property but denied the request for relief
for the residential property. Because the marital residence had been claimed as homestead
property during the marriage and continued to be claimed as homestead property by Michael,
who still resides at the residence, the chancellor found that Mississippi Code Annotated
section 11-21-1(2) (Rev. 2019) prohibited the involuntary partition of such property by chancery decree.
FACTS AND PROCEDURAL HISTORY
¶2. Theresa and Michael were married on August 15, 1992. On May 20, 1993, the couple
purchased the real property located at 21 St. Charles Place in Madison, Mississippi
(“residential property”). They held title as joint tenants with the right of survivorship and not
as tenants in common. Theresa and Michael built a house on the property, raised three
children there, and claimed homestead exemption on the property during this period. On
October 12, 2012, Michael conveyed to himself and Theresa, by quitclaim deed, as joint
tenants with the right of survivorship and not as tenants in common, title to certain other real
property in Madison County, Mississippi (“commercial property”).
¶3. Theresa moved out of the marital residence around August 31, 2014. She filed for
divorce on March 2, 2015. On October 22, 2019, the Madison County Chancery Court
denied Theresa’s complaint for divorce.
¶4. Shortly thereafter, on February 28, 2020, Theresa filed a complaint for partition by
sale in the Chancery Court of Madison County, Mississippi. She named Michael and
BankFirst Financial Services as defendants. On May 7, 2020, Theresa filed an amended
complaint for partition by sale and asked that the chancery court require the residential and
commercial properties to be sold and the proceeds divided.
¶5. A trial began on June 23, 2020. At that time, Michael still lived in the residential
property and continued to claim homestead exemption on the property. At the close of
Theresa’s case-in-chief, Michael moved for a directed verdict. The chancellor took the
2 matter under advisement until the conclusion of the case. When it became clear that the
matter could not be concluded that day, the chancellor granted Michael’s motion for a
dismissal pursuant to Mississippi Rule of Civil Procedure 41(b) as to the residential property,
but the chancellor denied the motion as it related to the commercial property. The trial
concluded on February 5, 2021. The “Findings of Fact and Conclusions of Law, Opinion and
Final Judgment” was entered on March 4, 2021. The chancellor denied Theresa’s request
for a partition as it related to the residential property but granted her request to partition by
sale as to the commercial property. Theresa appeals the chancellor’s decision to deny her
request for the partition by sale of the residential property. Neither party appealed the
chancellor’s decision as to the commercial property.
¶6. On appeal, Theresa argues that the chancellor erred by finding that the residential
property was not subject to partition by sale without an agreement to do so by the parties.
She contends that Mississippi Code Annotated section 11-21-1(2) and Noone v. Noone, 127
So. 3d 193 (Miss. 2013), which the chancellor relied on, do not support the chancellor’s
decision under the facts of this case. Theresa argues that because she has not lived in the
residential property since 2014 and because she released any homestead interest she might
have in the residential property, the chancellor erred when he found that the above authorities
precluded the partition by sale of the residential property. Finding no error, we affirm.
STANDARD OF REVIEW
¶7. In Sims v. Mathis, 192 So. 3d 1109, 1111 (¶7) (Miss. Ct. App. 2016), this Court said:
For property-partition cases, the standard of review is whether the appellate court finds manifest error in the chancellor’s decision. If so, the court will
3 reverse the chancellor’s findings. Georgian v. Harrington, 990 So. 2d 813, 815-16 (¶7) (Miss. Ct. App. 2008) (citations omitted). Questions of law are reviewed de novo. Fuller v. Chimento, 824 So. 2d 599, 601 (¶7) (Miss. 2002).
ANALYSIS
¶8. Concerning the rights of co-tenants to the partition of jointly owned property, this
Court said in Mosby v. Mosby, 962 So. 2d 119, 122 (¶8) (Miss. Ct. App. 2007):
With one statutory exception, cotenants have an absolute right to partition of property. Cheeks v. Herrington, 523 So. 2d 1033, 1035 (Miss. 1988). “Possession, or the right of possession, in the tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make.” Id. (citing Barnes v. Rogers, 206 Miss. 887, 893, 41 So. 2d 58, 60 (1949)). The statutory exception prevents a forced partition of the homestead property of a surviving spouse who is using and occupying the property. Miss. Code Ann. § 91-1-23 (Rev. 2004).
Another exception was created in 2009 when the Legislature amended Mississippi Code
Annotated section 11-21-1 by adding a subsection (2), which now reads as follows:
(1) Partition of land held by adult joint tenants, tenants in common, and coparceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties. They may also bind themselves by written agreement to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive between the parties, unless made or procured by fraud.
(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.
(Emphasis added).
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00402-COA
THERESA LAND APPELLANT
v.
MICHAEL LAND APPELLEE
DATE OF JUDGMENT: 03/04/2021 TRIAL JUDGE: HON. JAMES CHRISTOPHER WALKER COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: PAUL E. ROGERS ATTORNEY FOR APPELLEE: MACY DERALD HANSON NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 03/15/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., LAWRENCE AND EMFINGER, JJ.
EMFINGER, J., FOR THE COURT:
¶1. After moving out of the marital residence and being denied a divorce by the Madison
County Chancery Court, Theresa C. Land filed a complaint for the partition by sale of two
parcels of real property that she jointly owned with her husband, Michael D. Land. One
parcel was the marital residence, and the other parcel was commercial property. The
chancellor granted the petition as to the commercial property but denied the request for relief
for the residential property. Because the marital residence had been claimed as homestead
property during the marriage and continued to be claimed as homestead property by Michael,
who still resides at the residence, the chancellor found that Mississippi Code Annotated
section 11-21-1(2) (Rev. 2019) prohibited the involuntary partition of such property by chancery decree.
FACTS AND PROCEDURAL HISTORY
¶2. Theresa and Michael were married on August 15, 1992. On May 20, 1993, the couple
purchased the real property located at 21 St. Charles Place in Madison, Mississippi
(“residential property”). They held title as joint tenants with the right of survivorship and not
as tenants in common. Theresa and Michael built a house on the property, raised three
children there, and claimed homestead exemption on the property during this period. On
October 12, 2012, Michael conveyed to himself and Theresa, by quitclaim deed, as joint
tenants with the right of survivorship and not as tenants in common, title to certain other real
property in Madison County, Mississippi (“commercial property”).
¶3. Theresa moved out of the marital residence around August 31, 2014. She filed for
divorce on March 2, 2015. On October 22, 2019, the Madison County Chancery Court
denied Theresa’s complaint for divorce.
¶4. Shortly thereafter, on February 28, 2020, Theresa filed a complaint for partition by
sale in the Chancery Court of Madison County, Mississippi. She named Michael and
BankFirst Financial Services as defendants. On May 7, 2020, Theresa filed an amended
complaint for partition by sale and asked that the chancery court require the residential and
commercial properties to be sold and the proceeds divided.
¶5. A trial began on June 23, 2020. At that time, Michael still lived in the residential
property and continued to claim homestead exemption on the property. At the close of
Theresa’s case-in-chief, Michael moved for a directed verdict. The chancellor took the
2 matter under advisement until the conclusion of the case. When it became clear that the
matter could not be concluded that day, the chancellor granted Michael’s motion for a
dismissal pursuant to Mississippi Rule of Civil Procedure 41(b) as to the residential property,
but the chancellor denied the motion as it related to the commercial property. The trial
concluded on February 5, 2021. The “Findings of Fact and Conclusions of Law, Opinion and
Final Judgment” was entered on March 4, 2021. The chancellor denied Theresa’s request
for a partition as it related to the residential property but granted her request to partition by
sale as to the commercial property. Theresa appeals the chancellor’s decision to deny her
request for the partition by sale of the residential property. Neither party appealed the
chancellor’s decision as to the commercial property.
¶6. On appeal, Theresa argues that the chancellor erred by finding that the residential
property was not subject to partition by sale without an agreement to do so by the parties.
She contends that Mississippi Code Annotated section 11-21-1(2) and Noone v. Noone, 127
So. 3d 193 (Miss. 2013), which the chancellor relied on, do not support the chancellor’s
decision under the facts of this case. Theresa argues that because she has not lived in the
residential property since 2014 and because she released any homestead interest she might
have in the residential property, the chancellor erred when he found that the above authorities
precluded the partition by sale of the residential property. Finding no error, we affirm.
STANDARD OF REVIEW
¶7. In Sims v. Mathis, 192 So. 3d 1109, 1111 (¶7) (Miss. Ct. App. 2016), this Court said:
For property-partition cases, the standard of review is whether the appellate court finds manifest error in the chancellor’s decision. If so, the court will
3 reverse the chancellor’s findings. Georgian v. Harrington, 990 So. 2d 813, 815-16 (¶7) (Miss. Ct. App. 2008) (citations omitted). Questions of law are reviewed de novo. Fuller v. Chimento, 824 So. 2d 599, 601 (¶7) (Miss. 2002).
ANALYSIS
¶8. Concerning the rights of co-tenants to the partition of jointly owned property, this
Court said in Mosby v. Mosby, 962 So. 2d 119, 122 (¶8) (Miss. Ct. App. 2007):
With one statutory exception, cotenants have an absolute right to partition of property. Cheeks v. Herrington, 523 So. 2d 1033, 1035 (Miss. 1988). “Possession, or the right of possession, in the tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make.” Id. (citing Barnes v. Rogers, 206 Miss. 887, 893, 41 So. 2d 58, 60 (1949)). The statutory exception prevents a forced partition of the homestead property of a surviving spouse who is using and occupying the property. Miss. Code Ann. § 91-1-23 (Rev. 2004).
Another exception was created in 2009 when the Legislature amended Mississippi Code
Annotated section 11-21-1 by adding a subsection (2), which now reads as follows:
(1) Partition of land held by adult joint tenants, tenants in common, and coparceners, may be made by agreement, which shall be evidenced by a writing, signed by the parties, and containing a description of the particular part allotted to each, and recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be binding and conclusive on the parties. They may also bind themselves by written agreement to submit the partition to the arbitrament of one or more persons to be chosen by them, and to abide the partition made by the arbitrators and the articles of submission; and the written award shall be recorded in the office of the clerk of the chancery court of the proper county or counties, and shall be final and conclusive between the parties, unless made or procured by fraud.
(2) Homestead property exempted from execution that is owned by spouses shall be subject to partition pursuant to the provisions of this section only, and not otherwise.
(Emphasis added). The chancellor relied upon this new exception, and the Noone decision
applying this new statutory provision, in finding that the residential property was not subject
4 to partition by sale. Noone, 127 So. 3d at 194 (¶1).
¶9. In Noone, as in the case at bar, the wife was denied a divorce. Id. at (¶2). Following
the denial, the wife filed a complaint seeking the partition of the property that she jointly
owned with her husband and that they claimed as homestead property. Id. at (¶3). The wife
argued that their homestead property was valued in excess of $600,000 and that the phrase
“homestead property exempted from execution” used in Mississippi Code Annotated section
11-21-1(2) is limited to the $75,000 that is exempt from execution by creditors under section
85-3-21 (Rev. 2011). Noone, 127 So. 3d at 194 (¶3). The supreme court, citing Hendry v.
Hendry, 300 So. 2d 147, 148 (Miss. 1974), and Stockett v. Stockett, 337 So. 2d 1237, 1240
(Miss. 1976), found that the $75,000 limitation on the homestead exemption was applicable
only to actions by creditors against the homestead property. Noone, 127 So. 3d at 197 (¶12).
The court found that section 11-21-1 protects spouses from the involuntary partition of
homestead property by chancery decree. Id.
¶10. Theresa’s contention that the present case can be distinguished from Noone is without
merit. She contends that the wife in Noone still resided at the homestead residence. While
we see nothing in the Noone opinion that confirms that argument, we believe it is irrelevant.
In the present case, there is no question that the residential property is “owned by spouses.”
Miss. Code Ann. § 11-21-1(2). Although not living together, Theresa and Michael are still
married and jointly own the residential property that Michael claimed as homestead
property.1
1 Pursuant to Mississippi Code Annotated section 27-33-13(c) (Rev. 2017), Michael qualifies as a “head of a family” who may claim the residential property as his homestead
5 ¶11. Theresa argues that because she does not live in the residence, she cannot claim the
homestead exemption for the residence, and therefore the residence would be subject to the
claims of her creditors without the homestead limitation. As noted above, whether Theresa
may claim the homestead exemption on the property is irrelevant. Again, any creditors’
claims are not at issue here. Based upon Noone, how much or how little of the homestead
property may be subject to the claims of Theresa’s creditors does not affect the prohibition
against the involuntary partition of the homestead property pursuant to Mississippi Code
Annotated section 11-21-1(2).
CONCLUSION
¶12. The chancellor found that pursuant to Noone and Mississippi Code Annotated section
11-21-1, the residential property in this case, which is still claimed as homestead property
by Michael, may be partitioned only by written agreement of the parties and not by a
chancery court decree as provided by Mississippi Code Annotated section 11-21-3 (Rev.
2019). The chancery court found, as did the court in Noone, that section 11-21-1 was enacted
to protect a spouse from an involuntary partition of homestead property. Accordingly, the
complaint for partition by sale as to the residential property was denied. Finding no error,
we affirm.
¶13. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR.
because even though he is living apart from his wife, he occupied the residential property at the time of the separation.