PRESENT: Compton, Lacy, Hassell, Keenan, Koontz, and Kinser, JJ., 

and Whiting, Senior Justice 

JOHN BARBOUR ORGAIN, III 

v. Record No. 970622 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 9, 1998 

NORVELL ORGAIN BUTLER 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 In this appeal from a decree of sale entered in a partition 

suit, we consider whether the chancellor abused his discretion in 

ordering the property sold at public auction, rather than through 

a real estate broker as recommended by the commissioner in 

chancery. 

 John Barbour Orgain, III, and Norvell Orgain Butler are 

siblings who own as tenants in common a 40-acre tract of land 

located in Chesterfield County (the property). Butler filed a 

bill of complaint seeking partition or sale of the property, and 

the chancellor referred the case to a commissioner in chancery. 

 Based on an appraisal received in evidence, the commissioner 

determined that the fair market value of the property is 

$803,000. The commissioner also found that the property is 

unique in nature because it is one of the last large undeveloped 

parcels on Huguenot Road in Chesterfield County. The 

commissioner noted that neither party had offered to purchase the 

other party's interest in the property. 

 Orgain and Butler rejected two private offers to purchase 

the property. One offer was in the amount of the appraised 

value. The other offer, in the amount of $1,200,000, was 

acceptable to Butler but was rejected by Orgain because of 
certain attached conditions. After reviewing all the evidence, 

the commissioner filed a report recommending "that since the 

property . . . is unique in . . . nature, it should be publicly 

marketed through a reputable commercial real estate brokerage 

firm agreed to by the parties." Neither party filed exceptions 

to the commissioner's report. 

 The record does not show that any evidence was taken before 

the chancellor. After the chancellor heard argument of counsel 

concerning the commissioner's report, he rejected the 

commissioner's recommendation that the property be sold 

privately. The chancellor noted that the parties already had 

refused two private offers, and he ruled that a public auction 

was "the only alternative," due to the "likelihood that the 

parties will be unable to agree upon any price or method for 

conducting a private sale." 

 On appeal, Orgain argues that there was no evidence to 

support the chancellor's conclusion that the parties could not 

agree on the method and terms for a private sale of the property. 

 Orgain further contends that the chancellor improperly rejected 

the commissioner's report, since the chancellor did not find that 

the report was unsupported by the evidence. Finally, Orgain 

asserts that the chancellor's ruling is contrary to the parties' 

best interests. 

 In response, Butler argues that the chancellor did not abuse 

his discretion in ordering the property sold at public auction. 

Butler contends that the commissioner's recommendation was merely 

advisory and that once the chancellor concluded that an agreement 
between the parties was unlikely, "it was absolutely within the 

[chancellor's] discretion to order the public sale." We disagree 

with Butler's arguments. 

 Although the report of a commissioner in chancery does not 

carry the weight of a jury verdict, Code § 8.01-610, the report 

should be sustained unless the chancellor concludes that the 

commissioner's findings are not supported by the evidence. 

Yeskolski v. Crosby, 253 Va. 148, 152, 480 S.E.2d 474, 476 

(1997); Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 

(1984). This rule applies with particular force to findings of 

fact that are based on evidence taken in the commissioner's 

presence, but does not apply to pure conclusions of law contained 

in the commissioner's report. Morris v. United Virginia Bank, 

237 Va. 331, 337-38, 377 S.E.2d 611, 614 (1989); Hill, 227 Va. at 

577, 318 S.E.2d at 296. 

 Code § 8.01-610 gives the chancellor substantial discretion 

in the manner of reviewing the commissioner's report. While the 

recommendations of the commissioner are merely advisory, Hill, 

227 Va. at 579, 318 S.E.2d at 298, the statute does not allow the 

chancellor to ignore the commissioner's report or portions 

thereof. Gulfstream Bldg. Assocs. v. Britt, 239 Va. 178, 185, 

387 S.E.2d 488, 492 (1990). The chancellor is required to 

consider the commissioner's factual findings. See id.; 

Yeskolski, 253 Va. at 152-53, 480 S.E.2d at 476; Hill, 227 Va. at 

576-77, 318 S.E.2d at 296. When the chancellor has disapproved 

the commissioner's findings, we must review the evidence and 

determine whether, under a correct application of the law, the 
evidence supports the commissioner's findings or the conclusions 

of the chancellor. See Firebaugh v. Hanback, 247 Va. 519, 525, 

443 S.E.2d 134, 137 (1994); Morris, 237 Va. at 338, 377 S.E.2d at 

614. 

 In a partition suit, when partition of the subject property 

cannot be conveniently made, the chancellor may order a sale of 

the entire property if such sale will promote the interests of 

the parties who are entitled to the subject property or its 

proceeds. Code § 8.01-83; Shannon v. Hall, 235 Va. 360, 364, 368 

S.E.2d 695, 698 (1988); Sensabaugh v. Sensabaugh, 232 Va. 250, 

258, 349 S.E.2d 141, 146 (1986). A sale of property in a 

partition proceeding must be made in a manner that will bring the 

best price obtainable. Austin v. Dobbins, 219 Va. 930, 934, 252 

S.E.2d 588, 591 (1979); see Schweitzer v. Stroh, 182 Va. 842, 

848, 30 S.E.2d 689, 692 (1944); Federal Land Bank v. Parks, 170 

Va. 240, 242, 196 S.E. 627, 628 (1938). Thus, in the present 

case, the chancellor was required to order such method of sale as 

would obtain the highest price for the property, unless the 

evidence showed that the parties' conduct or other circumstances 

made use of that method unachievable. 

 The commissioner's recommendation, that the highest price 

for the property could only be obtained through public marketing 

by a real estate broker, was based entirely on his factual 

finding that the property was unique in nature because of its 

size and location. The record does not show that the chancellor 

considered this factual finding. Moreover, the record contains 

no evidence to support the chancellor's conclusion that the 
parties likely would be "unable to agree on any price or method 

for conducting a private sale." The record shows only that the 

chancellor assumed that the parties would be unable to agree on 

the method and terms of a private sale because they had not 

reached an agreement on any other matter during the course of the 

proceedings. 

 The chancellor reached this conclusion despite his 

acknowledgement that the method of sale recommended by the 

commissioner would be the most advantageous to the parties. 

Thus, the chancellor abused his discretion because he ordered a 

sale at public auction in the absence of any evidence that the 

parties' interests would be promoted by this method of sale, or 

that the parties were unable to agree on terms for listing the 

property through a licensed real estate broker. 

 Since the evidence does not support the chancellor's 

conclusions, we will reverse the chancellor's decree, enter final 

judgment here confirming the commissioner's report, and remand 

the case to the chancellor for further proceedings. 

 Reversed,

final judgment,

and remanded.