Submitted: May 5, 1993
Filed: May 25, 1993
Edward I. Eiland
Eiland & Bennett
Logan, West Virginia
Attorney for the Plaintiff
John G. Sims
James A. Walker
Logan, West Virginia Logan, West Virginia
Attorney for Defendant Attorney for Defendant
L.A. Browning T.A. Toler
JUSTICE MILLER delivered the Opinion of the Court.
1. 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.
2. Where the parties to a partition suit own separate
tracts of land in different counties, the circuit court in one of
the counties has jurisdiction to order a partition by way of sale
pursuant to W. Va. Code, 37-4-3, of both tracts of land.
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 names
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.See footnote 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
Answers to the questions certified are controlled by the
jurisdictional requirement mandated by W. Va. Code, 37-4-1 (1939),
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 cases 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."See footnote 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
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,See footnote 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 put the parties to the
expense and inconvenience of separate proceedings where separate
parcels, all parts of one estate, lie 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 lie partly in
one county and partly in another, . . . then such proceedings may
be commenced in either county,"See footnote 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 form 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. 185, 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)]."See footnote 5
See also Berry v. Berry, 266 Ala. 252, 95 So. 2d 798 (1957);
Murguiordo 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.See footnote 6 Such jurisdiction is not based upon a finding
that the lands so situated are contiguous or part of a single tract
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:
"A court, in a suit properly pending therein, may make a decree or order for the sale of property in any part of the State, and may direct the sale to be for cash, or on such credit and terms as it may deem best; and it may appoint a special commissioner or special receiver to make such sale." (Emphasis added).
We note that W. Va. Code, 37-4-3 (1957), relating to the
procedures for determining whether the land in a partition suit is
subject to an allotment in kind or a sale, specifically refers to
the appointment of a special commissioner pursuant to W. Va. Code,
55-12-1.See footnote 7 As to this latter section, we recognized in Laidley v.
Reynolds, 58 W. Va. 418, 52 S.E. 405 (1905), which involved a suit
to sell land under a judgment, that the Circuit Court of Kanawha
County had jurisdiction over property located in Boone County
because the debtor also owned property in Kanawha County. We made
this rather cryptic statement: "Besides, having jurisdiction it
has power to sell land in any county by the letter of [W. Va. Code,
55-12-1]." 58 W. Va. at 423, 52 S.E. at 408.
From the foregoing authorities, we conclude that both certified questions were correctly answered by the circuit court.
Where the parties to a partition suit own separate tracts of land
in different counties,See footnote 8 the circuit court in one of the counties
has jurisdiction to order a partition by way of sale pursuant to
W. Va. Code, 37-4-3, of both tracts of land.
Such a unitary procedure avoids the potential
multiplicity of suits with the attendant possibility of differing
results. Moreover, aside from obvious judicial economy, the
parties will avoid the increased expense of a second suit. Our
holding is limited to the facts of this case, i.e., the same
parties seek partition by sale on several separate tracts in
different counties.See footnote 9
Having answered the certified questions, this action is,
Certified questions answered
Footnote: 1The title question concerns whether Mr. Cook owned a fee simple interest in the Wyoming County parcel or whether he merely owned an undivided partial interest.
Footnote: 2It would appear that the word "land" was inserted into W. Va. Code, 37-4-1, as a result of a 1939 amendment which expanded the types of estates that are subject to partition to include "minerals, and lessees of mineral rights other than lessees of oil and gas minerals."
Footnote: 3N.H. Stat. Ann. c. 354, § 2 (1926).
Footnote: 4Md. Code art. 16, § 87 (1912).
Footnote: 5In Murphy v. Superior Court, 138 Cal. 69, 70 P. 1070 (1902), the Supreme Court of California applied section 5, article 6 of the California Constitution to partition actions. That provision stated "that all actions for the recovery of the possession of, quieting title to, or for the enforcement of liens, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions is situated." 138 Cal. at 70, 70 P. at 1070. (Emphasis added). The court interpreted "real estate," in both its popular and legal acceptation, to be "broad enough to include several distinct parcels of land." 138 Cal. at 71, 70 P. at 1070. The court went on to state: "The provisions in both the constitution and the Code were evidently intended to obviate a multiplicity of actions where the whole matter in controversy could be determined much better in one." 138 Cal. at 71, 70 P. at 1070.
Footnote: 6On the other hand, states that do not have language in their partition jurisdiction statute stating that the action may be brought in the county wherein the land or estate, "or any part thereof," is located have interpreted their statutes strictly and held that separate actions must be brought in each county where separate parcels of land are sought to be partitioned. See Pollard v. Jackson, 204 Ala. 31, 85 So. 431 (1920); Johnston v. Burton, 202 La. 152, 11 So. 2d 513 (1942); King v. Ambrose, 232 Pa. 617, 81 A. 714 (1911).
Footnote: 7W. Va. Code, 37-4-3, provides, in relevant part:
"If any party to the suit refuses
or is unable because of any disability,
including but not limited to infancy,
insanity and conviction of crime, to make,
execute and deliver a deed or other
instrument transferring title to the subject
to the person or persons to whom the subject
has been allotted, the court, or the judge
thereof in vacation, shall appoint a special
commissioner for the purposes of accepting
the purchase money from the person or persons
to whom the subject has been allotted,
making, executing and delivering thereto a
deed or other instrument therefor and
distributing such purchase money according to
the respective rights of those persons
entitled thereto. The special commissioner
so appointed shall give bond and be governed
in all respects as provided in section one
[§ 55-12-1], article twelve, chapter fifty-five of this Code."
Footnote: 8At least one court has held that a single partition suit is not available where the parties owning the separate tracts are not the same. Buschmeyer v. Eikermann, 378 S.W.2d 468 (Mo. 1964).
Footnote: 9We limit our holding to the facts of this case only because the parties did not discuss the possible ramifications of a partition in kind on a unitary procedure.