15.08 Partition Suits


In General

"Partition" may be defined as the division between several persons of property which belongs to them as co-owners. The term is more technically applied to the division of real estate made between co-tenants, tenants in common, or joint tenants. It has also been defined as the act or proceeding by which co-owners of property cause it to be either divided into as many shares as there are owners, according to their interests therein, or, if that cannot be equitably done, to be sold for the best obtainable price and the proceeds distributed.

A partition may be compulsory, that is, judicial partition, or voluntary, that is, by mutual consent.

Generally, partition suits are governed and regulated by state statutes.


Property Subject To Partition

All property held in co-tenancy is subject to partition, if there is a present right of possession, and regardless of whether the title of the parties is legal or equitable, every co-tenant may demand partition as a matter of right. Thus, as a general rule, the petitioner must have an estate in possession; that is, actual possession or a right to possession, although some statutes have modified the rule to include with respect to actions involving life tenants and remaindermen. Subject to the above rules, all parties need not actually occupy the property or have equal estates therein, and the estate in actual or constructive possession need not be in fee.


(1) Tenancies held by the entireties cannot be partitioned since a separate interest in each tenant would be inconsistent with the underlying theory of the tenancy.

(2) In the absence of statutory provisions, an exception to the general rule as to the right to partition of any property held in common exists in the case of burial lots in which bodies have been interred. On the ground of public policy, it is held that such a lot cannot be made the subject of partition.

Note: State statutes may set forth some other cases of exceptions or limitations.


Necessary Parties--Defendants In A Partition Suit

Every person having an interest in the property, whether in possession or otherwise, who is not a plaintiff must be made a defendant in the partition suit.

You must ascertain that all parties in interest have appeared or have been legally served, since a lack of jurisdiction of necessary parties renders the decree void not only as to the parties omitted but also as to the other parties to the suit. It is impossible to partition land either in kind or by sale without having all owners affected by the decree before the court.

State law must also be consulted in regard to special situations, e.g., spouses, personal representatives of Decedent's estates, etc.


Sales In Partition Suits

In most states, the procedural rules regarding partition suits are outlined in the statutes. The partition action is an action in rem but question of title cannot be settled in a partition suit.

The suit must be filed in the county in which the real estate, or some part of it, is located. The petition must describe the property and the respective interests of the several owners thereof, so far as known, and, so far as interests or the owners thereof are unknown, contingent, or doubtful, the facts must be set forth with reasonable certainty. In some states as abstract of the record title needs to be attached.

The resulting conveyances, upon being recorded in the county where the property is located, are valid against all subsequent purchasers, and also against all persons interested at the time who were parties to the action, including, in most states, owners of future interests not yet in being.


Effect Of Partition

A voluntary or judicial partition conveys or creates no title, but merely severs the unity of possession. No party loses anything by the deed except the right to hold the property in common, and no party gains anything except to hold the interest claimed by said party in severalty. But the title by which each party holds his divided share is the same as that by which his undivided interest in the estate in common was held. Thus, a co-tenant derives no title or interest from his co-tenant by a deed of partition.