Rel: April 19, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0464

_________________________

Kim J. Washington and Katrina J. Williams

v.

Elrick Earl Johnson

Appeal from Baldwin Circuit Court

(CV-22-900835)

SHAW, Justice.

The sibling plaintiffs below, Kim J. Washington and Katrina J. 

Williams ("the plaintiffs"), appeal from the judgment as a matter of law 
SC-2023-0464

2

entered by the Baldwin Circuit Court in favor of the defendant, their

brother Elrick Earl Johnson ("Johnson"), in their action seeking to 

partition jointly owned real property. The real property at issue in this 

case is indisputably "heirs property" subject to partition under the 

mandatory application of the Alabama Uniform Partition of Heirs 

Property Act ("the Heirs Act"), § 35-6A-1 et seq., Ala. Code 1975. See § 

35-6A-2(5), Ala. Code 1975 (defining "heirs property"), and § 35-6A-3(a)-

(b), Ala. Code 1975 (explaining the mandatory application of the Heirs 

Act "to partition actions filed on or after January 1, 2015," that involve 

"heirs property"). Applying the Heirs Act, we affirm in part, reverse in 

part, and remand.

Facts and Procedural History

In August 2022, the plaintiffs filed in the trial court a "Complaint 

for Partition of Real Property by Sale and Division of Proceeds" against 

Johnson. The complaint identified the real property at issue as jointly 

held "heirs' property" comprising 2.8 unimproved acres located in 

Fairhope ("the property"), which the plaintiffs proposed to sell -- a plan 

to which, they said, Johnson would not agree. The complaint further 

alleged that the property was "incapable of being equally and equitably 
SC-2023-0464

3

partitioned in kind." Thus, the plaintiffs requested that the trial court 

order the property sold and divide the proceeds among the parties in 

accordance with their respective ownership interests. In his subsequent 

answer, Johnson essentially admitted the basic facts underlying the 

parties' disagreement but disputed that the property was not subject to 

partition in kind. 

Although the record is silent as to whether there was compliance 

with the various pretrial procedural requirements of the Heirs Act,1 on 

March 22, 2023, the trial court conducted a bench trial on the matter. 

During that proceeding, Washington was the sole witness for the 

plaintiffs. She confirmed that the plaintiffs were "asking the Court to 

order that the property be sold and the [sale] proceeds be divided equally"

among the parties. Washington indicated that she and Williams had 

previously met and corresponded with Johnson in an effort to "work out 

a fair split of the property" but that Johnson had declined to sell and 

instead had expressed a desire to keep the property. During 

Washington's testimony, the plaintiffs admitted into evidence a survey of 

the property as well as an accompanying appraisal valuing the property 

1See, e.g., §§ 35-6A-6 and 35-6A-7(e)-(f), Ala. Code 1975.
SC-2023-0464

4

at $258,000 and determining that its highest and best use was for 

residential purposes.

When asked to explain to the trial court why she desired to sell the 

property, Washington indicated that she is approaching retirement and 

that both she and Williams, who Washington described as disabled, could 

use the money that the sale of the property would provide. She further 

explained that the property had been vacant since her father's death in 

2012, that the plaintiffs' children had no interest in returning to the 

property, and that the parties were "paying taxes every year on it." More 

specifically, according to Washington, she had been personally 

responsible for ensuring that the annual taxes totaling approximately 

$400 on the property were paid and had often paid both her one-third of 

the tax bill as well as Johnson's one-third. Washington further testified 

that Johnson had neither offered to purchase her interest in the property 

nor proposed a way to equitably divide the property among the parties. 

Washington opined that it would be impossible to divide the 

essentially L-shaped property to ensure that each sibling received "a fair 

piece." She attributed this to the fact that only an 87-foot-wide portion 

along the front of the property had road access and explained that "the 
SC-2023-0464

5

back two lots" do not have an alternate means of road access. When 

asked whether she had explored the possibility of first dividing the 

property and then selling it in subdivided parcels, Washington testified 

that she had done so and had learned the following in response to her 

inquiries:

"[B]ecause the land is locked on the back, it would be very 

difficult. I would have to go through the City, there was 

something about egresses and ingresses or getting the 

neighbors and having to put a driveway all the way back. It 

just seems that the back property would be too difficult to sell 

separately from the front piece."

Thus, Washington stated that, in her opinion, the property was worth 

more as a whole than as three individual parcels. Finally, Washington 

denied being aware of any purported sentimental attachment to the 

property by any of its owners and also noted that Johnson neither lived 

on the property nor used it for any business purpose. 

During cross-examination, Washington confirmed that there was 

no residence on the property. She did note that Johnson lives directly 

across the street from the property and voluntarily mowed and 

maintained the property. Washington also explained that she and her 

siblings had not, since receiving the property from their mother in 2013, 
SC-2023-0464

6

entered into any type of written agreement regarding the property's 

upkeep, the payment of the annual taxes on the property, or the future 

disposition of the property.

Washington further noted that she believed the $258,000 appraisal 

value represented a fair price for the property. When asked what 

evidence she possessed suggesting that, were the property partitioned in 

kind, her portion would be worth less than one-third of that appraised 

value, Washington reiterated her belief "that the back lots would be less 

because they're landlocked." Upon being presented with the possibility 

of creating a 30-foot right-of-way on the property to provide access from 

the road frontage to the rear of the property, Washington expressed her 

lack of qualification to say whether that was a viable option for equitably 

dividing the property into three lots. She did note that the property 

possessed no natural impediments to the creation of such a right-of-way

and conceded that, while potentially "costly," that solution was "probably 

possible." Washington also conceded that, were that to occur, she 

possessed no evidence to suggest that she would be unable to sell her 

resulting one-third portion of the property and receive as much as she 

would if the property was sold as a whole and she received one-third of 
SC-2023-0464

7

the sales price. Finally, Washington agreed that the property had "been 

in [their] family for a long period of time." She also admitted that 

Johnson had previously informed her that he did not want the property 

sold because he wanted it to remain in the family. Washington also 

agreed that the impetus behind the lawsuit was her desire for the money 

she would receive from the requested sale and that, if the property was, 

instead, partitioned in kind, she and Williams could, in fact, sell their 

parcels.

On redirect, Washington acknowledged that during trial was the 

first time she had been presented with the possibility of creating a rightof-way as a means of providing access to the rear of property if it were 

partitioned in kind. Washington expressed fear that she would be 

financially responsible for that process. She also noted that she remained 

unclear about which of the three owners would be entitled to the parcel 

with road frontage and the existing driveway. Washington further 

explained that, despite the absence of a written agreement regarding the 

upkeep and taxes, she had historically paid Johnson's portion, because, 

she said, he felt that mowing the grass on the property throughout the 

year was his contribution.
SC-2023-0464

8

Upon the conclusion of the plaintiffs' case, Johnson testified. He 

confirmed that he lived directly across from the property, which, he said,

had been in his family for 40 or 50 years. He indicated that, as a result, 

the property held sentimental value for him because "[he was] raised [on 

the property] and ... [had] been working on that property all [his] life." 

Johnson indicated that he did not want the property sold because he 

wanted it to remain within the family. 

Johnson also testified that the parties had no written agreement 

regarding managing the property but stated that, when the taxes came 

due annually, "each one of [them paid] it." He acknowledged that he did 

not contribute to the property taxes every year but, instead, indicated 

that he has "always" done "everything" necessary with regard to the 

actual maintenance of the property. Despite the plaintiffs' appraisal, 

Johnson testified that he felt the property was worth closer to $300,000. 

He noted, however, that he had never obtained his own appraisal of the 

property either as a whole or as three individual parcels. Johnson further 

indicated that there had been no discussion among the parties about 

"buy[ing] each other's interest out." 
SC-2023-0464

9

When asked whether, despite Washington's representations as to 

the inability to equitably divide the property, he had a proposal to 

accomplish a fair partition in kind, Johnson demonstrated on a map of 

the property where separate lots could be located and where an easement 

or right-of-way for road access could be placed. He further testified that 

the property was "nice and level" with only a slight slope in the back and 

that there was sufficient room to create the easement he proposed. 

Johnson's testimony suggested that, were his plan implemented, he 

desired to take the resulting lot fronting the roadway and said that 

Washington and Williams could receive "the back two lots and 

everybody'll have access to get to it." He noted that a survey would be 

necessary to divide the property into three equal lots comprising 

"[a]lmost an acre" each, but he indicated that he had no idea whether his 

proposed division would affect the plaintiffs' ability to sell their lots.

When asked, on cross-examination, why he did not simply purchase the 

plaintiffs' interests in the property, Johnson said that "if [he] had the 

money he would," but he again denied that it was necessary that the 

property be sold. Upon the conclusion of his testimony, Johnson rested

his case. 
SC-2023-0464

10

At that time, the plaintiffs "request[ed] that the [trial court] enter 

an order that the property be listed for sale on the open market and that 

the proceeds be distributed amongst [the parties]." Johnson responded 

with his own oral motion for a judgment as a matter of law on the ground 

that the plaintiffs had allegedly "failed to meet their burden of proof to 

show [the property] cannot be equitably divided." In support, Johnson 

emphasized his sentimental attachment to the property and its proximity 

to his own home. He also pointed out the lack of evidence indicating that 

a partition in kind would result in proceeds for the plaintiffs materially 

less than if the property was sold in its entirety. 

Thereafter, the trial court granted Johnson's motion for a judgment 

as a matter of law. In that judgment, the trial court found that the 

property qualified as heirs property derived from the parties' mother and 

that each party was a one-third owner. It further held, in pertinent part: 

"... The Plaintiffs never had a survey conducted on the 

property, nor produced an expert witness who could state the 

property could not be equally and equitably divided. ...

Washington only stated, based on personal opinion, the 

parcels would be less valuable if divided into one-third 

portions rather than as a whole. Other than her testimony, 

[the] Plaintiffs offered no expert opinion as to whether or not 

a partition would reduce the value. 
SC-2023-0464

11

"....

"... If a joint owner is unable to demonstrate that the 

real property cannot be equitably divided among the joint 

owners, the property must be partitioned and not sold. ... The 

party seeking the sale for division has the burden of proving 

that the property cannot be equitably divided between the 

joint owners. ... The Plaintiffs failed to meet their burden of 

proof.

"... After considering the factors listed in Ala. Code § 35-

6A-9(a), the Court is of the opinion the property is not due to 

be sold. The Plaintiffs produced no survey nor provided any 

expert witness who could state the property could not be 

practically divided or the parcels, if sold separately, would 

have less value than if it were sold as a whole. The Plaintiffs 

also testified they have no knowledge of the process of

subdividing the property or setback regulations with the City 

of Fairhope.

"... Further, the evidence presented proved the property 

was in the family for decades and held sentimental value to 

Johnson for that reason. Johnson presented evidence which 

also proved he solely contributed to all maintenance on the 

property. Johnson provided a proposed division of the 

property in Court which would allow each co-tenant access to 

the public road and a fair division of the property for each cotenant. Johnson further testified the property in question 

was raw undeveloped land with no businesses or structures 

located thereon.

"... Since it is the burden of the Plaintiffs to prove ... the 

property could not be equally or equitably divided, and they 

were unable to do so, a partition by sale is not appropriate." 
SC-2023-0464

12

The trial court thus entered a judgment "in favor of" Johnson. It did not 

order that the property be partitioned in kind or otherwise equitably 

divided.

Thereafter, the plaintiffs filed a postjudgment motion and an 

accompanying brief challenging the trial court's judgment in several 

respects. In particular, in addition to identifying purported factual 

inaccuracies in the trial court's findings, the plaintiffs contended that § 

35-6A-8, Ala. Code 1975, of the Heirs Act provides that "a partition in 

kind should be ordered if not partitioned by sale or purchased by the 

other co-tenants." Thus, they argued that, having concluded that the 

property was not subject to partition by sale, the trial court should amend 

its judgment to partition the property in kind among the parties. 

Following the denial of their postjudgment motion, the plaintiffs 

appealed.

Standard of Review

"Because the circuit court received evidence ore tenus, 

our review is governed by the following principles:

"'"'"[W]hen a trial court hears ore tenus 

testimony, its findings on disputed facts are 

presumed correct and its judgment based on those 

findings will not be reversed unless the judgment 
SC-2023-0464

13

is palpably erroneous or manifestly unjust." '"

Water Works & Sanitary Sewer Bd. v. Parks, 977 

So. 2d 440, 443 (Ala. 2007) (quoting Fadalla v. 

Fadalla, 929 So. 2d 429, 433 (Ala. 2005), quoting 

in turn Philpot v. State, 843 So. 2d 122, 125 (Ala.

2002)). "'The presumption of correctness, 

however, is rebuttable and may be overcome where 

there is insufficient evidence presented to the trial 

court to sustain its judgment.'" Waltman v. 

Rowell, 913 So. 2d 1083, 1086 (Ala. 2005) (quoting 

Dennis v. Dobbs, 474 So. 2d 77, 79 (Ala. 1985)). 

"Additionally, the ore tenus rule does not extend to 

cloak with a presumption of correctness a trial 

judge's conclusions of law or the incorrect 

application of law to the facts." Waltman v. 

Rowell, 913 So. 2d at 1086.'

"Retail Developers of Alabama, LLC v. East Gadsden Golf

Club, Inc., 985 So. 2d 924, 929 (Ala. 2007)."

Bond v. Estate of Pylant, 63 So. 3d 638, 643-44 (Ala. Civ. App. 2010). 

Discussion

The Heirs Act seeks to protect the property rights of cotenant heirs 

susceptible to losing family-owned property by means of a forced sale. 

See generally Manson v. McNeil, 376 So. 3d 454 (Ala. 2022) (Mitchell, J., 

concurring specially). See also Stephens v. Claridy, 346 So. 3d 519, 520

(Ala. 2020) ("The Heirs Act presumes that a partition in kind can be 

ordered unless such a partition would 'result in great prejudice to the 
SC-2023-0464

14

cotenants.' § 35-6A-8(a), Ala. Code 1975."), and § 35-6A-7(a), Ala. Code 

1975 (providing that if a petitioner, in his or her initial pleading, fails to 

state a preference for means of division, "the petitioner shall be deemed 

to have not requested partition by sale"). Section 35-6A-7(a) of the Heirs 

Act permits a cotenant heir to request the partition of jointly owned heirs 

property by filing a petition "request[ing] partition by sale."2 In that 

event, the Heirs Act affords the remaining cotenants first an opportunity 

to "buy all the interests of the cotenants that requested partition by sale" 

and, if that does not occur, permits the "cotenant that requested partition 

by sale ... to buy all the interests of the other cotenants that requested 

partition by sale." § 35-6A-7(e) and (f)(2). Neither option occurred here. 

In such cases, the Heirs Act provides: "If no cotenant elects to buy all the 

interests of the other cotenants that requested partition by sale, the court 

shall send notice to all the parties of that fact and resolve the partition 

action under Section 35-6A-8 to Section 35-6A-11 ...." § 35-6A-7(f)(8).

Section 35-6A-8, Ala. Code 1975, provides, in pertinent part: 

2Remaining provisions of § 35-6A-7 deem a pleading seeking 

partition but not specifically stating a desire that the property be sold as 

not requesting partition by sale. In this case, Johnson's answer indicated 

that the property could be equitably divided and thus should not be sold. 
SC-2023-0464

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"(a) If all the interests of all cotenants that requested 

partition by sale are not purchased by other cotenants 

pursuant to Section 35-6A-7, or, if after conclusion of the 

buyout under Section 35-6A-7, a cotenant remains that has 

requested partition in kind, the court shall order partition in 

kind unless the court, after consideration of the factors listed 

in Section 35-6A-9, finds that partition in kind will result in 

great prejudice to the cotenants. ...

"(b) If the court does not order partition in kind under 

subsection (a), the court shall order partition by sale pursuant 

to Section 35-6A-10 or, if no cotenant requested partition by 

sale, the court shall dismiss the action."

(Emphasis added.) 

I.

The plaintiffs contend that the trial court erred in holding that the 

property could be partitioned in kind -- as opposed to being sold --

because, they say, a partition in kind would greatly prejudice them. See 

§ 35-6A-8(a). Specifically, the plaintiffs point to Washington's testimony 

as to her belief that the property could not practicably be divided because 

the two resulting parcels in the rear of the property would allegedly be 

landlocked, because of the need for providing easements, and because of 

the related costs of providing ingress/egress to those two parcels.

Section 35-6A-8(a) provides that when the interests of cotenants 

that requested partition by sale are not purchased, or when any 

remaining cotenant requests that heirs property be partitioned in kind, 
SC-2023-0464

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the trial court "shall order partition in kind unless the court, after 

consideration of the factors listed in Section 35-6A-9, finds that partition 

in kind will result in great prejudice to the cotenants." Section 35-6A-9, 

Ala. Code 1975, includes the following factors for evaluating a request to 

partition heirs property:

"(a) In determining under subsection (a) of Section 35-

6A-8 whether partition in kind would result in great prejudice 

to the cotenants, the court shall consider all of the following:

"(1) Whether the heirs property practicably 

can be divided among the cotenants.

"(2) Whether partition in kind would 

apportion the property in such a way that the 

aggregate fair market value of the parcels 

resulting from the division would be materially 

less than the value of the property if it were sold 

as a whole, taking into account the condition under 

which a court-ordered sale likely would occur.

"(3) Evidence of the collective duration of 

ownership or possession of the property by a 

cotenant and one or more predecessors in title or 

predecessors in possession to the cotenant who are 

or were relatives of the cotenant or each other.

"(4) A cotenant's sentimental attachment to 

the property, including any attachment arising 

because the property has ancestral or other unique 

or special value to the cotenant.

"(5) The lawful use being made of the 

property by a cotenant and the degree to which the 
SC-2023-0464

17

cotenant would be harmed if the cotenant could 

not continue the same use of the property.

"(6) The degree to which the cotenants have 

contributed their pro rata share of the property 

taxes, insurance, and other expenses associated 

with maintaining ownership of the property or 

have contributed to the physical improvement, 

maintenance, or upkeep of the property.

"(7) Any other relevant factor.

"(b) The court may not consider any one factor in 

subsection (a) to be dispositive without weighing the totality 

of all relevant factors and circumstances."

The trial court's application of § 35-6A-9 in this case was factintensive. The plaintiffs, in support of their claim that the above factors

weigh in favor of a sale of the property in this case, accurately recount 

Washington's testimony below as resolving some of the foregoing factors

in the plaintiffs' favor. However, her testimony was countered by other 

evidence supporting the trial court's conclusion that the plaintiffs 

nonetheless failed to demonstrate that the statutory factors as a whole

weigh against a finding of prejudice to them in the event of partition in 

kind. For example, Johnson presented a potential solution to provide 

right-of-way access from the road to any resulting lots at the rear of the 

property -- a proposal that Washington could not dispute was a viable 
SC-2023-0464

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option for equitable division. Further, Washington conceded both that 

the property possessed no natural impediments to creation of such a 

right-of-way and that while such a right-of-way might result in some 

additional costs -- a point on which no party offered actual evidence -- it 

did appear to present a possible solution.3 Perhaps most importantly, 

Washington also conceded that she possessed no evidence suggesting 

that, in the event that road access was provided to the rear lots and the 

property was partitioned in kind rather than sold, she would receive less 

money for her resulting lot than for her one-third interest in the property 

if it were sold in its entirety. 

The evidence further indicated that the parties' family had long 

held the property and that Johnson had a sentimental attachment to it

as a result. Further, both Johnson and other family members apparently 

reside nearby, including a nephew who resides in the residence formerly 

3Although Washington expressed general concerns about the "costs 

and difficulties" of partitioning the property in kind and who would be 

responsible for the costs, those concerns were unspecified. Further, 

Johnson proposed that an easement for access be provided on the 

property, not that an actual driveway, road, or other improvements be 

constructed by the parties. It is not explained how the costs related to a 

partition in kind in this case would differ from the costs associated with 

a partition by sale. 
SC-2023-0464

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occupied by the parties' mother on adjacent property.4 

Thus, we are unable to agree with the plaintiffs' argument that they 

successfully demonstrated that, under § 35-6A-9, partition in kind would 

result in great prejudice to them in this case. In rejecting their claim, we 

reiterate that the ore tenus standard is premised on the fact that the trial 

court had the opportunity to evaluate the demeanor and credibility of the 

witnesses. See Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 

791, 795 (Ala. 2000). After having fully reviewed the record, we are, like 

the trial court, unable to conclude that the plaintiffs met their burden of 

proving that the property could not be fairly and equitably divided among 

the parties. See Cotton v. McMurtry, 440 So. 2d 1039, 1040 (Ala. 1983) 

("The burden of proving that a parcel cannot be fairly and equitably 

divided is upon the party seeking a sale for division."). Cf. Stephens, 346 

So. 3d at 523 (quoting Black v. Stimpson, 602 So. 2d 368, 370 (Ala. 1992))

4Although it appears undisputed that Johnson had not paid his onethird share of the annual taxes on the property every tax year and that 

Washington has, in some years, been forced to pay the entirety of the 

taxes, Johnson apparently did, according to his own testimony, 

contribute in some years, and he testified that, in the years he had not 

done so, he felt that he had matched his portion through physical labor 

maintaining the property -- a task for which he has apparently been 

solely responsible since the inception of the parties' joint ownership. 
SC-2023-0464

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("'A trial court's finding that land cannot be equitably partitioned is 

entitled to a presumption of correctness and will be overturned only if 

plainly or palpably erroneous.'"), and Steadman v. Uptown Motors, Inc., 

842 So. 2d 684, 685 (Ala. Civ. App. 2002) ("The trial court's determination 

of whether the property may be divided equitably among the joint owners 

is entitled to the ore tenus presumption of correctness."). Instead, the 

evidence supporting the factors set forth in § 35-6A-9 was disputed, and 

the trial court was tasked with resolving that dispute. See Bond, supra. 

According the trial court's findings the deference they are due, we are

unable to conclude that the trial court's finding that the plaintiffs failed 

to show that the property cannot be partitioned in kind is palpably 

erroneous or manifestly unjust. Id.

II.

The plaintiffs also seek relief based on purported factual errors 

contained in the trial court's judgment, which, they say, Johnson 

proposed and the trial court adopted as its judgment.

For example, the plaintiffs first point to the fact that the trial 

court's judgment appears to suggest that they "never had a survey 

conducted on the property" and also "produced no survey," which 
SC-2023-0464

21

findings, they say, were clearly belied by their evidentiary submissions 

at trial. As the plaintiffs correctly indicate, a survey of the property and 

a related appraisal were introduced into evidence at trial. Although the 

materiality of the trial court's finding to the judgment seems

questionable, it appears, based on the context, that the trial court was 

inartfully pointing out that the plaintiffs had not offered a survey or 

appraisal of the property to prove that it would be less valuable if 

equitably divided and sold in individual lots. 

The plaintiffs also challenge the trial court's finding that Johnson 

offered a proposed equitable means of partitioning the property in lieu of

a sale. The plaintiffs contend that the evidence established that the 

property has a single means of ingress and that any rear lot would be 

landlocked. Contrary to this claim, as explained above, Johnson's 

proposed division specifically included a right-of-way to provide access to 

the two resulting parcels that would not have road frontage.

The plaintiffs next challenge the trial court's conclusion that the 

plaintiffs possessed "no knowledge" of regulations governing the 

proposed right-of-way or of municipal regulations. Instead, they say, 

Washington's testimony demonstrated that, as to any landlocked lot, the 
SC-2023-0464

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parties "'would have to go through the City, there was something about 

egresses or ingresses or getting the neighbors and having to put a 

driveway all the way back.'" Plaintiffs' brief at 28. However, that

testimony appears to make the trial court's point that, other than mere 

generalities, the plaintiffs offered no concrete evidence establishing that 

Johnson's alternate proposed partition in kind was legally unworkable. 

In sum, any purported inaccuracies in its judgment aside, the trial 

court's judgment makes clear that, in resolving this matter, the trial 

court considered the disputed evidence in light of the relevant statutory 

factors and found that the evidence supported a partition in kind. We 

again see nothing, based on our own review of the record and the 

testimony recounted above, to suggest that the trial court's judgment is 

either palpably erroneous or manifestly unjust. See Bond, supra. 

III.

Finally, the plaintiffs contend that the trial court erred to the extent 

that it failed, despite concluding that the property was heirs property, to 

order the property either partitioned in kind or partitioned by sale as, 

they say, the Heirs Act requires. 

It is well established that
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"[p]artition of land at the instance of any adult tenant in

common is a matter of right. If the land is not capable of an 

equitable division in kind, a sale for division is a matter of 

right, without regard to the interest of other tenants in 

common. Raper v. Belk, 276 Ala. 370, 162 So. 2d 465 (1964). 

The circuit court of the county in which the land is located has 

subject matter jurisdiction to partition the land, or to sell the 

land for division of the proceeds if the complaint alleges and 

it is proven that a fair and equitable partition in kind cannot 

be made. Meador v. Meador, 255 Ala. 688, 53 So.2 d 546 

(1951)."

Sockwell v. Hyde, 503 So. 2d 817, 818 (Ala. 1986).5

Relying on language from § 35-6A-8, the plaintiffs correctly contend

that when heirs property cannot be equitably divided, the court may 

order the sale of the property and the division of the resulting proceeds; 

alternately, they say, when the property can be equitably divided among 

its co-owners, § 35-6A-8(a) provides that the "the court shall order 

partition in kind." (Emphasis added.) We agree.

Here, the trial court, based on the evidence presented, concluded 

that the partition of the property by division would not greatly prejudice 

the cotenants -- a finding affirmed above. Having reached that 

5Section 35-6A-3(c), Ala. Code 1975, explains that the Heirs Act 

"supplements" existing provisions of Title 35, Chapter 6 (governing 

general "partition" actions) and replaces only the portions of that chapter 

"that are inconsistent with [the Heirs Act]." 
SC-2023-0464

24

conclusion, the trial court was required under the Heirs Act to so divide 

the property in kind. In Stephens, supra, we explained: "If heirs 

property cannot be partitioned in kind, then a partition by sale must be 

ordered pursuant to § 35-6A-10, Ala. Code 1975." 346 So. 2d at 520.

Applying the mandatory provisions of § 35-6A-8(a), the converse is also 

true. See Steadman, 842 So. 2d at 685 ("If a joint owner is unable to 

demonstrate that the real property cannot be equitably divided among 

the joint owners, the property must be partitioned and not sold."). More 

specifically, a trial court, having concluded that a sale was not warranted 

because a means of equitable partition in kind exists, may not simply 

take no further action and, in effect, deprive a cotenant of the legal right 

to seek partition.6 

6To the extent that Johnson contends that the plaintiffs failed to 

argue that a partition in kind was required at any time before the filing 

of their postjudgment motion, we note that such an argument was not 

ripe until after the trial court had concluded that partition by sale was 

inappropriate. Moreover, the plaintiffs presented their claim to the trial 

court in their timely filed postjudgment motion and thus provided that 

court the opportunity to correct its error. Additionally, during closing 

remarks to the trial court, Johnson's counsel acknowledged that that 

court "has the authority to order this to be partitioned" and specifically 

requested that the court "order as a matter of law that it be done in the 

way ... Johnson has proposed and not [be] sold." 
SC-2023-0464

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Conclusion

Based on the foregoing, we cannot say that the trial court erred in 

finding that the property can be partitioned in kind. That portion of the 

trial court's judgment is therefore affirmed. Because the trial court found 

that a partition in kind was possible, the trial court was required to order 

that the property be partitioned in kind. We thus reverse the trial court's 

judgment to the extent that it failed to do so, and we remand the matter 

for further proceedings consistent with this opinion. 

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.