### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submi tted on Bri efs October 2, 200 2 Session
NANCY CRAWFORD, ET AL 

### . v. ROGER CRAWFORD, ET AL 

### .

Appeal from the Chancery Court for Hawkins County No. 14226 Thomas R. Frierson, II, Chancellor FILED NOVEMBER 14, 2002
No. E2002-00372-COA-R3-CV
Plaintiff/Appellant

Nancy Crawfor d owns an interest in a parce l of rea l proper ty lo cated in

Hawkins Co un ty, Tennessee as tenants in common with the Defendants/Appellees. A ppellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property

and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins la

nd owned b y Ms

. Crawford. The .604 acre contains a barn, which Ms. Crawfor d and her late husband had maintained, improved, and used since the late 1980 ' s believing it was located on their property . Appellees opposed a partition in kind and requested a partition sale. The

Trial Cour

t found it in

the manif

est best inter est of all parties f or the pr operty to be sold, rather

than par titioned in

kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed as Modified; Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined. Dougla s T. Jenkins, Rogers ville, Te nnessee , for the

Appellan ts, Nanc y Cr

awford , et. al.
R.B. Ba ird, I II , Roger sville, Te

nnessee , for the

Appellee s, Roger

Crawfor d, et. al.

OPINION Background Minaphee Crawford and his wife, Hassie, were f ee simple owners of a

pproximate

ly 28.5 acres l ocated in HawkinsCounty , Tennes see. Thisland comp rises the propert y a t issue in th

is case. When Hass ie Crawfor d died in 19 88, title to

the subje ct prope

rty vested in her seven children.-2-

One child, Robert D. Crawford, died in 1998, leaving his widow, Nancy Crawford, and t

heir two minor childre n, Robert D. Crawf

ord, I I, a nd Robin D. Crawfor

d as his sole and surv iving heirs at law. Nancy Cra

wford, Robert D. Crawford, I I, and Robin D. Crawford ea ch own an interest in the subject property, a

long with the many othe

r heirs of Hassie Crawford.
In addition to

her inte rest in the subject parcel, Nancy Crawford owns an

adjoining parcel of land where her

home is situated. Located in close proximity to Ms. Crawford’s home is a barn. Un til re ce nt ly, Ms . C ra wfor d b el ie ve d t hi s b ar n w as lo ca te d o n h er pr op er ty. In 1987, Nancy Crawfo rd and her late husband made some repairs to the barn a nd constructed an attached shed. They a lso used th e barn for many years f or the storage of hay . Additionally, Nancy and Robert Crawford paid the taxes on the portion of land containing the shed believing they owned the land.
After her husband’s de ath, Ms. Crawford d is co ve re d t he ba rn wa s n ot on he r p ro pe rt y. She unsuccessfully a

ttempted to work out an agreement with her co- owners and subsequently sued for par tition in kind requesting a tract of approximately .604 acre containing the barn and shed be set aside for her. Ms. Crawford was not, however , conce rn ed with whether the remainder of the subject property wa s partitioned in kind or by sale testify ing at trial she didn’t “want any thing to do with that [decision].”

Evidence at trial indicated the subje ct prope

rty consist s of some valuable botto m land, somel ess v aluable hill land, and some improvements. Ms. Crawford testified the portion of land she request

ed is less in acrea

ge than her pro r ata share and shebelieve s the valu e of the . 604 acre is less than, or equal to, her interest in the property

.

Ms. Crawfor

d and both

of her e xperts, a r

eal esta te appra is er a nd a registered land surveyor, testified it would be difficult, but not impossible , to partit

ion the sub

ject pro perty in kind. The Appellees provided no expert testimony, but two of the A ppellees testifiedthey

did not think partition in kind according to value was possible.

Hay den Mallo

ry , Ms. Craw ford’s e

xpert rea l estate appraiser, testified allotting the .604 acre to Ms. Crawford would not hurt the sale of the remainder

of the property . This opinion, however, was based

in part on Mr. Mallory’smisconception that the property line ran through the barn. Mr. Mallory testified that althoug h he had never encountered a situation wher e part of a barn sat on one person’s property a nd the remainder on

the property of

another, it had been his experience that people would hesitate to bid on property whe re they ha d to share a

pond. A survey done

by Gary Weems, Ms. Crawford’s expert registered land surve yor, s hows the property line doe s not run throu gh the barn or the attached shed. Ms. Crawford testified, however, she and her late husband had paid taxes on the shed-half of the barn ever since the shed was constructed. Mr. M allory also testified cutting out the .604 acre would not decrease the value of the rema inder of the property more than Ms. Crawford’s share.

Mr. We em s, wh o h ad su rv eye d t he pr op er ty, testified setting aside the .604 acre for Ms. Crawfor

d would not

hurt the r emainde r of the p roperty because several building sites with road-3-

front age could be cut out of the remainder. Mr. Weems also testified seven shares of roug hly equal value could be cut out of the property without much di fficulty. Mr. Weems testified it would not damage th e a bi li ty t o d iv id e t he re ma in de r o f t he pr op er ty i f the .604 acre w ere set aside fo r Ms. Crawford. Appellee, Velma Pen nington, testifie d she want ed the pr operty sold as a w

hole because this was what her

father intended . Contrar

y to all the other trial witnesses, Ms. Pennington testified she belie

ved the mo st

valuable portion of the subject property w as the area where the bar n and the house s are loc ated. All other wit nesses, a t least t hose w ho were

asked, te stified the most valuable portion was the three acres of bottom land located ac ross the road fro m the bar n. Ms. Pennington testified she was not “a real estate person,”but she did not think the .604 acre could be set aside and the remainder of the property divided according to value. Appellee, Charles Crawford, testified he did not have any training or particular expertise on dividing land, but he did not think there was any wa y to divide the property into seven tracts equal in v alue “‘ cause part of it is not usable.” Tim Crawford, Charles’ son, also testified, but his testimonywas not relevant to any issues on appeal. Appellees provided no other witnesses, but stated three mo

re inter ested pa rties cou ld testify if nece ssary . This additional testimony would have been cumulative and was, therefore, not produc ed.

The Trial Cour

t ordere d the prop erty

sold and further ordered that Nancy Crawford receive, in addition

to her pro rata share of the sale pr oceeds, $1,982.91 representing a pro rata share of the taxes she prev

iously paid for the benefit

of the co -tenant s, $138.00 for rep airs made

to the old barn, and $548.00 for the construction of the shed attached to the barn. Ms. Crawford appeals the Tr ia l C ou rt ’s de ci si on de nyi ng he r a pa rt it io n i n k in d s ol el y as to he r i nt er es t i n t he pr op er ty. Discussion
On appeal, one issue is presented for review: whe ther the Trial Court erre d in orderi ng partition by sale rathe

r than partition in kind.
Our review i s de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of

the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13( d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County

Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001). “The conclusion to be drawn from [th e] facts, and whether they authorize a sale, is, of course, a matter of law.” Wilson v. Bogle , 3 2 S.W. 386, 388 (Tenn. 1895).

This Court has held: “It i s the polic y of the law to

give ea ch perso n his o wn i n severa lty and not to force him to continue in partnership with another.” Nicely v . Nicely , 293 S.W.2d 30, 32 (Tenn. Ct. App. 1956). Toward this end, Tennessee statutes long have provided any person having an estat e for y ears in land, as a

tenant in common with others, is entitled to partition either-4-

in kind or by sale. See Tenn. Code Ann. § 29-27-101 (2001). “Courts have a measure of discretion as to the manner of partition but none as to the fact .” Yates v. Yates , 571 S.W.2d 293, 296 (Tenn. 1978) (emphasis in original).

“It is well settled that where real estate can be partitioned in

kind among the parties interested, it should not be sold for division but should be partitioned in kind.” Glenn v. Gresham , 602 S.W.2d 256, 258 (Tenn. Ct. App. 1980). Tenn. Code Ann. § 29-27-201, however, provides two conditions under which a partition sale, rat her than partition in kind, is appropriate. Tenn. Code Ann. § 29- 27-201 (2 001). Spe cifically, the statut e states: Any person entitled to a partition of premises, . .. is equally entitled to have such premisessold for d

ivision, in t

he following cas es: (1) If the premises are

so situated that

parti tion thereof cannot be made; or (2) Where the premises are of such descr iption th at it would be manifest ly for the advantage o f

the parties that the same should be sold instead of partitioned.
Tenn. Code Ann. § 29-27-201 (2001). “The burden of proof is on him who seeks the sale.” Glenn , 602 S.W.2d at 25 8. “This isa heavy burden. ‘Nothing

short of th

e clear est and mo st

satisfactory proof could justify the Court in ordering a sale against the protest of one of the tena nts in common.’” Miller v . Miller Bros. Farms, Inc. , No. 03A01-9808-CH-00294 (consolidated with case Nos. 0 3A01

- 9808-CH-00295 and 03A01-9808-CH-00296), 1999 Ten n. App. LEXIS 70 1, at *3-4 (Tenn. Ct. App. Oct. 15, 1999), appl. perm. appeal denied Feb. 28, 2000 , (quoting Reeves v. Reeves , 58 Tenn. 669, 674 (Tenn. 1872)).

Satisfy ing eithe r cond itio n of Te nn. C ode An n. § 29 -27-2 01 is suffi cient to tri gg e r the right to a

sale. See Medley v. Medley , 454 S.W.2d 1 42, 151 (Tenn. Ct. Ap p. 1969) ( dealing

with Tenn. Code Ann. § 23-2128, the precursor to Tenn. Code Ann. § 29-27-201). The Middle Section of this Court held in Medley : The mere fact

that land may be partitioned am

ong cot enants is not conc lusive tha t a saleshould not be ordered. If by partition the value of all shares would be less than the value of the tra ct as a whole then partition would be manifestly inequitable a nd a sale should be decreed. Medley , 454 S.W.2 d at 15 1. “I t is the rig

ht of a te nant in co mmon to hav e a divisio n, unless it is manifest ly the inter est of both that it should be sold.” Baumgartner v. Baumgartner , 67 S.W.2d 154, 159 (Tenn. Ct . App. 193 3). The te st for de termining whether a sale is manifestl

y for the ad vanta ge of the parties is “whether [the land] will bring more money when sold as a whole than theseveral shares would bring in the aggrega te when sold separately

to different purchasers, after a partiti on in kind.” Nicely , 293 S.W.2d at 33.1 The part ies who oppose d the sal e hel d a one- half undi vided int eres t i n th e subj ect land. -5- “Partition in kind is required... where neither condition [of Tenn. Code Ann. § 29-27- 201] exists.” Glenn , 602 S.W.2d at 258 (dealing with Tenn . Code Ann . § 23-212 8, the precursor t o Tenn. Code Ann. § 29-27-201). Our statutes provide, however, partition in kind need not be ordered forthe enti re property

. See Tenn. Code Ann. § 29-27-104 (2002). A partial partition in kind i s allowed u nder Te nn. Code A

nn. § 29-2 7-104, wh

ich provi des: [P]artition shall be made according to the respective rights of the parties, setting a part to such as desire it their shares in severalty , and leaving the shar es of oth ers, if desired, in common ; and if there are minors, the court may , in its discretion, leave their shares in common, or set them apart to each in severa lty, as may

appear to be just, upon the proof introduced. Tenn. Code Ann. § 29-27-104 (2002).

The Middle Section of this Court has held:
Alth ough a court may or

der a sale without commissioners in a proper case, it appea rs that it is generally

intended that an effort be first made by commissioners to partition in kind....This general rule is especially applicable when

one or more of the owners opposes sale for partition. In such an e vent, an effort shoul d be made to accommo date

the owner

seeking his share

in kind, leaving the remainder for sale for division.
McLean v. Murphy , No. 01-A-01-9305-CH-00212, 1993 Tenn. App. LEXI S 695, at *17 (Tenn. Ct

. App. Nov. 3, 1993), no appl. perm. appeal filed

. In McLean , this Court stated a partial p artition in kind could be made a llocating to th e parties who opposed a sale one-half the va lue of the land. 1 McLean , 1993 Tenn. App. LEXI S 695, at *16. The othe r half of the la nd could th

en be all ocated t

o the remaining heirs , who coul d proceed to partition their half by sale

. Id . The McLean Court held the Trial Court’s order of

sale be vacate d without pr ejudice so furthe r proce edings c ould be he ld to explore the feasability of a partial partition in kind. Id . at *17.
Since the conclusion to be drawn from the facts re g arding whether a sale is authorized is a matter of law, we subject the Trial Court’s decision to a de novo review with no presumption of correctness. We hold the Trial Court erred in ordering a complete partition by sa le.
In order to

obtain a p artition b y sa

le, Appellees must

carry the burden of proving they are entitled to a sale under Tenn. Code Ann. § 29-27-201. After a thorough review of the record, we find the Appellees have not carried their burde n with the clearest and most satisfactory proof. Appellees merely produc ed two witnesses who testified they did not“think” the property c ould be partitioned in kind. Appellees produced no expert testimony to support thei r contention. On the other hand, Ms. Crawfor

d produc ed expert

witness te stim o ny t

hat part ition in kind

might be difficul t,-6-

butnot impossible. These experts also testified setting aside the .604 acre would not lessen the value of the remainder of the property any more than Ms. Cra

wford’s share. Ms. Crawford’s share if the propert y were partitioned by

sale would, of course, include both herinterest in the land, and the money the Trial Court awarded her to cover the pr eviously paid taxes, the repairs to the barn, and the construction of the shed.

Alth ough the Trial Court held it would be in the manifest best interest of the parties for the property to be

sold, the evidence preponderates ag ainst this conclusion. The record contains no evidence showing that a sale of all of the property would re sult in more money for the Appe llees than would a sale of the remaining property after a partial partition was made to Ms. Crawford. Ms. Crawford, however, did provide evidence in suppor t of her position that cutting out the .604 acre would not lessen the value of the remainde r of the property any more than Ms. Cra

wford’s share. From the record before us, the evidence preponderates in favor of a finding that the Appellees will receiveas much money for the ir shares from a partition sale of the remaining proper ty, after the

.604 acre pa rt it io n i n k in d t o M s. Cr aw fo rd , a s t he y wo ul d f ro m a pa rt it io n s al e o f t he en ti re pr op er ty. Thus, Appellees did not satisfy the test of “manifestly f

or the advantage of the

parties” and did not show they were

entitled to a sale under Tenn. Code Ann. § 29-27-201. Since the Appellees did not satisfy their bur den, the T

rial Cour t was not ju stified in

orderin g a sale

agains t the prote st of Ms. Crawford.
Under

Tenn. Code Ann. § 29-27-104, Ms. Crawford is entitled to a partial partition in kind. We modify the judgment of the Tr ial Court to order

a partial partition in kind of the .604 acre to Ms. Crawford with a partition sale of the remaining prope rty to take place

as ordered by

the Trial Cou rt with th e proceeds divided among the remaining heirs, including Ms. Crawford’s two children as their interests appear. We remand this case to the Trial Court to fa

cilitate awarding Ms. Crawford a partial partition in kind of the .604 acr e as her sole and c omplete r

emedy for any and all interest she holds in the subject parcel.
Conclusion

The judgment of the TrialCourt is affirmed as modified, and this cause is remanded to the Trial Court for such further proceedings as may be required consistent with this Opinion and for collecti on of the c ost s below . The costs on appeal are assessed ag ainst the Appellees, Roger Crawford, et. al.

___________________________________ D. MICHAEL

SWINEY, JUDGE