1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the concurrence

of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion wou l d have no preced ential value. Whe

n a case is decided by memora

ndum opinion it

shallbe designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON MAY 2000 SESSION TERESA E. MILES, ET AL 

### . v. EARL PACE
A Direct Appeal from the Chancery Court for Madison County No. 54361 The Honorable Joe C. Morris, Chancellor

No. W1999-00407-COA-R3-CV - Decided July 31, 2000

Four tenants in common, each owning a one-eighth interest in the property , filed s uit for sale for partition against the other tenant in common, owning a

one-half intere

st. After a non-jury trial, the court found that the p roperty wa s so situated that it c

ould not be partitio

ned and also found

that it would be manifestly for the advantage of the parties that the property be sold rather than partitioned. The tenant in common owning one-half interest has appealed. We affirm, because the evidence does not preponderate against the findings of the chancellor.

Ten n. R. App. P. 3, Appeal as of Right; Judgment of the Chancery Court Affi rmed an d Remanded.

C RAWFORD , P.J., W.S., delivered the opinion of the court, in which H IGHERS

. J., and L ILLARD , J., joined.
Harold R. Gunn, Humboldt, For Appellant
Michael T. Tabor, Jackson, For Appellees

MEMORANDUM OPIN ION 1

Plaintiffs, Teresa E. Miles, Marla D. Carr. Deborah P. Steed, and Ly dia Pace Kinzer, sue defendant,

Earl Pace, seeking to have property owned by the parties sold for partition. The

### -2-

complaint ave rs that pla

intiffs each own a one-eighth undivided interest in the property, and defendant owns a

one-half undivide

d interest in the pr

operty. Plai

ntiffs allege th

at the property

is so situated that it cannot be partitioned in kind and that it should be sold for partition.

Defendant’s answer admits the allegations regarding th e ownership of the property but denies that the property cannot be partitioned in kind and seeks to have it partitioned in kind.
After a non-jury trial, the trial court filed Findings of Fa ct and Conclusions of Law:

1. On May 11, 1942, Vanden Griffin and wife Nell Griffin conveyed approximately 86.6 ac res located in the 3 rd civil district of Madison County, Tennesseeto J.C. Pace and wife, Mi nnie Pace (Tria

l Exhibit “1"). 2. J.C. Pace had two children, Thomas Pace and Earl Pace. 3. Minnie Pace is the stepmother of Thomas Pace and Earl Pace. 4. J.C. Pace died in January, 1985. 5. Thereafter, Thom as P ace died and left surviving him four (4) children namely, Teresa

E. Miles, Marla D. Carr, Deborah P. Steed and Lydia Pace Kinzer. 6. On May 19, 1994, Minnie Pace conveyed to Marla D. Humphreys
a 2 acre tract which was adjacent to the approximately 6 2 acre tract which is the subjec

t of this partition la

wsuit. 7. Also, there was a 1 acre tract out of the original tract that was conveyed by Minnie

Pace. Both of these

tracts (the 2 acre tract and 1 acre tract) are identified on Exhibit “6 " in the trial of this case. These 2 tracts are on the Ashport Road. 8. Minnie Pace died owning the 62 acre tract in Madison County, Tennessee. 9. At the time of her death, Minnie Pace left a Last Will and Testament which in

relevant part sta

ted as follows: 1. I hereby will, bequ

eath and devise all of the rest of my property, real, personal or mix ed, of what ever kind and wherever lo

cated unto: Earl P

a ce a 1⁄2 undivided interest; a

n d to Teresa E. Miles, Marla D. Carr, Deborah P. Steed, and Lydi a D. Pace, a 1/8th undivided interest each, i

n fee simple

forever....(Trial Exhibit “3") Thus, each Plaintiff owns a 1/8th undivided interest and Ea rl Pace owns a 1⁄2 undivided in

terest. 10. Only one expert testified in this case, James P. Murdaugh, a certi fie d real estate app

raiser that has p

racticed in the r

eal estate

### -3- appraising field

for approximate

ly 25 years. (Tria

l Exhibit “5") 11. Mr. Murdaugh testified that there was approximately 600 feet of useable road

fronta ge on the Ashport Ro ad. He specific

ally testified that the subject approxi mately 62 acres could not be partitioned in kind. Essentially, he testified that the subject 62 acres could not be partitioned in kind bec ause of two (2) small fringe residential parcels cut off the northwestern corner of the subject tract along Ashport Road which diminishes the road frontage and creates
an irregular shaped parcel. The southern portion of the tract is

gently rolling and contains severalsmall open fields. Thereis a small stand of timber on the tract located on this sou thern portion south of the dwelli ng unit along the east property line. Mr. Murdaugh testifi e d that another reason that the subject tract could not be partitioned in kind was because the app roximately 15 acr

es of timber is

located on the eastern section of the subject property. (Trial Exhibit “7"). 12. Essentially, Mr

, Murdaugh testifi

ed that the subjec

t real estate was so situated that partitioning in kind could not be made. 13. Mr. Murdaugh f

urthermore testi

fied that the prop

erty should be sold instead of partitioned so that the respective owners could receive the value which they are entitled to. 14. Mr. Murdaugh te

stified that the sub

ject 62 acres wa

s essentially farm

land, and he testif

ied in regard to

the location of the existing improvements, w hich consisted of a house, barn and shed, which were all located on the east side of the property. 15. Also Mr. Murdaugh testified that the well on the subject land was located near the house and that the subject hou se wa s appraised on the tax rolls for $8,000. 16. Mr. Murdaugh testified that the cost of partitioning the property would be

greater that the

cost of selli ng the property a s a whole. 17. Teresa Miles t

estified she did no

t believe the prop

erty could be partitioned in kind, but that the approximate 62 acre tract shou ld be sold. 18. Earl Pace tes

tified there was

an agreement pr

esented to him to somehow divide the property, but the agreement was never signed.

CONCLUSIONS OF LAW
T.C.A. § 29-27-20 s

tates as follows:

### -4- Salefor division authorize d . – Any person entitled to a partition of premises,

under the provisions of § § 29-27-101 – 29-27- 123, is equally entitled

to have such premises sold for division, in the following cases: 1. If the premises are

so situat ed that partition thereof cannot be made. 2. Where the premises are of such description that it would be manifes tly for the advantage of the parties that the same should b e sold instead of partitioned.

A party seeking a partition by sale is entitled to have th e pro pertysold if it demonstra tes either that the

property cannot b e partitioned in kind [Tenn. Code Ann. § 29-27-201(1)] or that the sale of the proper ty is manifestly in the best interests of all the parties [Tenn. Code Ann. §. 29-27-202(2)]. Rates v. Rates , 571 S.W.2d 293, 296 (Tenn. 1978) and Glen v. Gresham , 602 S.W.2d 256, 258 (Tenn. Ct. App. 1980). The sale of the property is justified if either conditions exists. Thus , the sale of the property may, in proper circumstances,

be ap propriate even i

f the land is physic

ally capable of being partitioned. Medley v. Medley, 61 Tenn. App. 331, 350-51, 454 S.W.2d 142, 150-51 (1969).

The correctness of

the trial c ourt’s decision r ests upon its determination if that parties’ interests are best served by ordering the saleof the property. The trial court considered and balance d the following factors in making its determination:
1. The existing means of access to the property;

2. The characte

r of the property

and its potential use

s;
3. The location of

the existing improve

ments;

4. Access to wate

r and other similar

utilities and servi

ces;
5. The potential value of a single large tract as compared to the value of smaller tract

s;

6. The costs of partitioning the property comp ared with the costs of selling the property; and

### -5- 7. The state of the title and the existence of any liens or encumbrances. Gober v. Burrus , 726 S.W.2d 532 at 534-35.

Basedupon the foregoing facts, in particular, the testimony of the only expert that testified in this case, thesubject property which consists of 62 acres is owned 1⁄2 by Earl Pace and i n which each Plaintiff owns a 1/8th i nterest, is so situated that it cannot be partitioned. In addition, it would be manifestly

for the advantage of the parties that the property be sold instead of partitioned.

DATED this the 29 th day of September, 1999.

On November 3, 1999, the trial court filedits judgment ordering the property to be sold for partition and incorporated the findings of fact and conclusions of law by reference.
Defendant has appealed and presents two issues for review as stated in his brief:
1. Should the property in question have been partitioned or sold?

2. Should a judge request findings of fact from the attorn eys and render his decis

ion before he re

ceives such findi

ngs?

Since this case

was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. Te

nn. R. App. P. 13(d).

From our review of the record, we find that the evidence does not preponderate against the findings of fact made by th e trial court.Moreo ver, the trial court has correctly stated the law applicable

to the facts as shown in the record. We concludethat the trial court correctly ordered the sale for partitio

n. The defendan

t’s first issue for

review is without me

rit.

In defe ndant’s second issue, he seems to be complaining that the trial judge filed find ing s of fact and conclusions of law before receiving findings of fact submitted by the parties. The record indicates that at the conclusion of the evidentiary hea

ring, the trial cou

rt requested both

counsel to furnish a finding of fact “as to when Mr. J. C. Pace and Minnie Pace took from Vanden Griffin, et ux, and then, when he died, what the Will said and so on and how much acres and how much frontage. Just give that to me and I’ll make the Conclusions.” Apparently the trial court determined from reviewing his notes that he did not really need the information he requested from counsel and proce ededto prepare fi ndings of fact and conclusions of law. Defendant appears to be arguing that

### -6-

when the trial judge requests counsel to prepare suggested findings of fact, then it is re

versible error for the trial judge to

render his judg

ment before rec

eiving the sugg

estions. No law is c

ited for this proposition, and thi

s Court knows of no su

ch law. This issue i

s without merit.

Acco rdi ngly, the judgment of the trial court

is affirmed, and

this case is

remanded to the trial court for such further proceedings as necessary

. Costs of the appeal are a

ssessed agains

t appellant, Earl Pace.

____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.