Appellees Jeffrey, Mary and John Lacksen filed a complaint in which they sought the partition of real property, 53 acres of unimproved timberland in Hancock County. Appellant Henry Cheeves, through his guardian, filed an answer and counterclaim in which he asserted that any inquiry into a partitioning would be premature, alleging that appellees had no lawful ownership interest in the property because their interest had been obtained by fraud. The trial court ruled that partitioning should occur and appointed three persons to make appraisals and report their findings. See OCGA § 44-6-166.1. This appeal followed.
In 1993, Robert Trawick sold appellees what was purported to be a 100 percent interest in the property for $27,000. Trawick also executed an affidavit naming himself as the sole heir-at-law of the last record owner. Subsequently, appellees discovered they had not obtained 100 percent interest in the property and attempted to purchase the remaining interests held by a number of individuals. Appellees filed the partition action after buying tracts from all the willing sellers.
After a hearing, the trial court determined appellees owned an undivided 93.66 percent interest in the real property at issue and
1. OCGA § 44-6-166.1 provides that its procedures must be followed
[w]henever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because . . . the value of the entire property will be depreciated by the partition applied for. . . .
The trial court found that “because of the fact that this property consists of 53 acres of timberland with no road frontage and because of the varying percentage interests of the parties hereto an equitable division by metes and bounds is impossible.” See OCGA § 44-6-166.1. The trial court’s finding reflects that the land was most suitable for timberland and that it would be unfeasible for a timber company to buy the smaller tracts for timber, some being as small as 0.086805 percent of the 53-acre tract, with the result that the smaller tracts would be virtually worthless. This finding supports the trial court’s ruling that OCGA § 44-6-166.1 applies because it demonstrates that the value of the land as a whole would be diminished. See Royston v. Royston,
2. Appellant argues that the trial court erred in allowing appellees to proceed in equity while at the same time granting them a remedy at law under OCGA § 44-6-166.1. We agree with appellant that the trial court’s conclusions of law were internally inconsistent. On the one hand, the trial court concluded that “[a] proceeding in equity for partition is more suitable and just than a proceeding to partition at law,” which is the standard established by OCGA § 44-6-140 for determining whether a partitioning should proceed in equity. On the other hand, the trial court concluded that the property should
The trial court did not specifically find that a remedy at law was inadequate or that peculiar circumstances existed that made proceeding in equity more appropriate. Our own review of the record does not persuade us that a remedy at law was inadequate or that there were peculiar circumstances that made proceeding in equity more appropriate. Compare Larimer v. Larimer,
3. Finally, appellant contends the trial court erroneously denied him his statutory right to a jury trial. OCGA § 44-6-165 provides that “any of the persons against whose right or title a judgment is sought . . . may, by way of defense, show . . . that the petitioner does not have title ... to any part of the land” in order to obtain a jury trial. Appellant has not made such a showing by asserting that appellees obtained their title by defrauding third parties. “A defendant co-tenant cannot defeat partition on the ground that the co-tenant seeking partition acquired his interest illegally from a third person who is not a party to the case.” Gaulden v. Mills,
For the reasons stated above, we affirm the ruling of the trial court.
Judgment affirmed.
Notes
Six other persons who were defendants in the trial court and who have not pursued an appeal were found to own the remaining undivided interests.