# FILED January 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ WILLIAM J. BUNCH, Plaintiff-Appellee, Gibson Chancery No. 11676 Vs. C.A. No. 02A01-9705-CH-00106 WALTON I. BUNCH and STEVEN B. BUNCH, Defendants-Ap

pellants.

________________

___________________________________________________________ _ FROM THE GIBSON COUN TY CHANCERY COURT THE HONORABLE GEORGE R. ELLIS, CHANCELLOR

L. L. Harrell, Jr.; Harrell & Harrell of Trenton

For Appellee G. Griffin Boyte of Humboldt For Appellants

REVERSED AND DISMISSED IN P ART; AFFIRMED IN PART

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

CONCUR: HOLLY KIRBY LILLARD, JU DGE HEWITT P. TOMLIN, JR., S ENIOR JUDGE This case involves a suit to partition certain real and personal property owned by three brothers as jo int tenants with the right of survivorship. Walton and Steven Bunch appeal the order of the trial court granting the sale for partition.2 William, Walton and Steve Bunch are broth ers and own certain real and personal property in Gibson County as joi nt tenants with righ

t of survivorship. T

hey inherited this property from their father as tenants in common, but subseq uently created t

he joint tenancy w

ith rightof survivorship in 1 981, on the advice of counsel, in

the belief that it would help keep the property in the Bunch family. Appellant Steve Bunch was the primary caretaker of the farm, but received occasional assistance from both brothers. Appellee William Bunch filed a complaint seeki

n g to ha ve the property sold and the proceeds divided equally be tween the three

broth ers. Wi lliam asserted that Steve had never providedan accounting and that he felt that a farm that size should generate

more income

than the two to three hundred dollars he received as his share each year. Steve and Walton each filed

an answer and counter-complaint seeking $12,081 and $1,416 respectively for servi ces rendered. However, both Steve and Walton testified at tri al that at the time th ey rendered the

ir services, they never expected to be paid. After a hearing, the chancellor: (1) ordered a sale of th e real and perso nal property pursuant to T.C.A. § 29-27-101; (2) awarded appellant Steve Bunch $4,850 for his ser

vices; and (3) dismissed Walton’s counter-claim. Appellants’ Motions to Alter or Amend Judgment or for

a New Trial were denied. Appellants have appealed and present five issues for review which we have reworded

as follows: 1. Whether a joint te

nancy with right of

survivorship is

capable of being sold for partition; 2. If so, cana joint tenant who participated in the creation of the joint tenancy later seek its partition, or is he bound by contract

or estoppel?; 3. Did the trial court err in awarding Steve Bunch only $4,850 of the $12,081 claimed for services rendered to the estate?; 4. Did the trial cour

t err in dismissing appellant Walton Bunch’s counter-claim

for compens atio n for services rendered to the estate?; and 5. Did the trial court err in directing that the compensation awarded to Steve Bunch be paid out of the sale proceed s w hich would, in effect, resu

lt in Steve paying a p

ortio n of hi s own judgment? 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 fa ct by the trial cou rt. Unless th e evidence preponderates against the findings, we must affirm, absent error of law.3

T.R.A.P. 13(d). PARTITION OF A JOI NT TENANCY At common law, when a conveyance was made to two or more unmarried persons where the unities of time, title

, interest and possession wer

e present,a joint tenancy with the right of survivorship

was created by operation of law, unless the instrument specified that creation of a tenancy in co mmon was intended. Jones v. Jones , 185 Tenn. 586, 206 S.W.2d 801 (1947). Tennessee abolished the survivorship aspect of joint tenancies created by operation of law by statute in 1784. See T.C.A. § 66-1-107 (1993) (current version of the 1784 statute). However, parties can still create estates of survivorship where the instrumentcreating the estate, whether deedor will, evidences such an intention. Jones, 206 S.W.2d at 803; McLeroy v. McLeroy , 163 Tenn. 124, 40 S.W.2d 1027 (1931). Although appellee William Bunch claims that he would not have signed the deed creating the joint tenancy if he had understood the significance of the right of survivorship, the question before this Court is not whether the tenancy created is valid, but whether partition can be had against the will of one or more joint tenants. In Tennessee, pa

rtition is provided f

or in T.C.A. § 29-27 -101: An y per son having an estate of inheritance, or for life, or for years, in lands, and holding or being in possession thereof, as tenant in common or otherwise, with others, is entitledto partition thereof, or sale for

partition, under the provisions of this chapter. T.C.A. § 29-27-101 (1980). Appellants assert that since the element of survivorship in joint tenancies was abolished by st atute in 1784, the le

gislature could

not have intended to allow the partition of joint tenancie

s with the right of su

rvivorship

when it enacted the partition statute, on which the current version is based, in 1787. We disagree, because the statute only abolished the rightof survivorship in joint tenancies crea ted by operation o

f law, and the rig

ht of parties to specifically

provide for a rig

ht of survivorship

has not been abridged. Jones v. Jones , 185 Tenn. 586, 206 S.W.2d 801 (1947). A joint tenancy with the right of survivorship will be recognized

as valid, as long as the instrument creating the tenancy manifests an intent to create a right of survivorship. Id. Therefore, the legislature c annot be said to

have disallowed the right of joint tenants to partitio

n on the basis that su

ch an estate doe

s not properly exis

t. We have been un

able to locate

any Tennessee case that deals directly with the right of

a joint tenant to s e ek partition of a joint tenancy with right of survivorship in cases where the4

partition is opposed by the other joint tenants. However, our research revealed cases comparing and contrasting joint tenancies with tenancies by the entirety that

discuss this issue ta

ngentially

or in dicta. For example, in distinguishing a joi nt tenancy from a tenancy by the entirety, the Tennessee Court of

Chancery Appeals stated “[a] severance of a joint tenancy may be made, and the estate thereby turned into a tenancy in common, by any one of the joint owners, at his will.” Tindell v. Tindell , 37 S.W. 1105, 1106 (Tenn. Ch. App . 1896). Similarly, i n addressing the ma

in issue of whether

an interest in property passed to one joint tenant at the death of the other, the Tennessee Supreme Court state d: “One joint tenan

t can convey his in

terest in land withoutthe joinder of the other tenant.” McLeroy , 163 Tenn. at 127. Mos t convincing, however, is the 1889 Tennessee Supreme Court case of Bierce v. James , 87 Tenn. 538 (1889), wherethe Court discussed in detail the development of the state’s partition statute. The statute in ef

fect at the time of Bierce defined the persons entitled to have partition or sale for partition, as those “having

an estate of inheritance, or for life, or for years, in lands, and holding and being in pos sessio n thereof as tenants, in common or otherwise, with others.” Code of 1858 § 3262. This statute is virtually identical to the one currently in effect. We quote from the Cour t’s discussion of the development of the partition statute as embodied in the Code of 1858:

Before [the enactment of the Code of 1858] several changes were made by whi ch the very limite

d statutory right of partition between claiman ts “ o f the estate of an intestate” (Act 1787) was so enlarged and extended as to permit of

partition, and salefor partition, not only of such estates, but of all estates held under will or deed, by tenants in c ommon, or tenants in coparceny, joint tenants, or otherwise. The Code, with a

slight change in

phraseology, included the material provisions of all the various Acts preceding, in some instances by appropriate sect ion, a nd in some by condensing several sections into one, b y i ncluding in a single statement claimants and inte

rests provided fo

r in separate Ac

ts.

* * * * The Act of 1789 extended

the right to partition to tenants in common, and providedthat “where real estate may be held by two o r m ore persons as tenants in common, they shall and may have the sameliberty and privilege of having their estates divided as provided by the Act of 1787 for dividing th e estates of intestates.” In 1799 the partition law was so amended as to define the rightof par tition as extending to any “persons ho

lding lands, tenements, or hereditaments in fee simple, or for a less estate as tenants in common, or as joint tenants, or in cop arc eny or5 otherwise,” by prov iding for the mode of proceeding such persons should adopt in order to have partition.

* * * * It is enough to say of a

ll these st

a tutes that while at different times, and in different terms, provision was made for parceners,

tenants in co mmon a nd joint tenants, the effect of all was to permit partition or sale for partitio

n in a proper cas

e to all these tenants or holders of any undivided intere st in connection with others, whatever it may have been.
Bierce v. James , 87 Tenn. 538, 540-42 (1889). On the authority of Bierce , Tindell , and McLeroy , we hold that an estate held by joint tenants with the right of

survivorship may be partitioned, or sold for partition in an appropriate case, at the instance of one or more joint tenants, whether or not all joi nt tenants jo in in the petition. This holding is in line with the majority rule and is stated as the general rule in 59A Am. Jur.2d Partition § 27 (1987); 68 C.J.S. Partition § 1 (1950); 20 Tenn. Jur. Partition §§ 2-4 (1997); and Roger A. Cunnin gham et al. , The Law of Property § 5.11 at p.223 (West 1993). Furthermore , a llowing such a partition is consistent with “the policy of the law to give each person his own in several

ty and not to

force him to continue in partnership with another.” Nicely v. Nicely , 41 Tenn. App. 179, 183, 293 S.W.2d 30, 32 (1956). We now turn to the question whether a joint tenant who participated in the creation of the joint tenancy can late

r seek itspartition. Appellants asser t that since William

Bunch acted with hi s brothers to

create the joint tenancy, he is estopped from now seeking its destruction. We cannot agree. Under the facts

of this case, we can find no detrimental reliance on the part of the appellees that would warrant the application of an estoppel. Nor ca n we find an y contractual basis under which to de n y William his right to seek a partition. Courts of other states have deniedpartition in cas es where a cotenant has entered into an agreement not to partition. See, e.g., Wade R. Habeeb, Annotation, Contractual Pr ovisions as Affecting Right to Judicial Partition , 37 A.L.R.3d 962 (1971). However, in t hi s case we can find no evidence of such an agreement,

either express or implied. We hold that the t rial co urt did not err in granting the petition of William Bunch for a sale for partitionof the real and pe rsonal property o

wned jointly by the three broth

ers. Since the man

ner of partition w

as not questioned o

n appeal, we assume that the parties agree that the pr operty in question i

s not suitable for p

artition in kind. Therefore,6

the trial court’s decision to order a sale for partition will not be disturbed on appeal.

COMPENSATION FOR SERVICES TO THE JOINT ESTATE Issues 3, 4 and 5 regardi

ng compensation fo

r services rend

ered to the jointly o

wned estate will be treated to

gether. The tria

l court denied Wa

lton Bunch’s claim

for services rendered

to the estate, but awarded Steve Bunch $4,850 “for management of the property.” Neither side has presented any authority whichallows a joint tenant to be compensated for services rende

red to the joint estate, nor

are we able to find

any Tennessee case law on point. Tennessee law does provide, how ever, that in distr ibuting the procee

ds of a partition sa

le, a cotenant in s

ole possession of the property is liable to the other cotenants f

or rents and prof

its received in e

xcess of his pro rata share. Omohundro v. Elkins , 109 Tenn. 711, 71 S.W . 590 (1902); Johnson v. Johnson , 53 S.W. 22 6 (Tenn. Ch. App. 1899). Furthermore, where one tenant has made improvements

to the property, he is entitled to an a llowance for the

cost of the improve

ments to the extent the value of the land was enhanced. Uhlhorn v. Keltner , 723 S.W.2d 131 (Tenn. App. 19 86); Wil

burn v. Kingsley , 3 Tenn. App. 88 (1926). However, we are persuaded by other jurisdictions who have held that absent an agreement, a cotenant is not entitled to credit for the value of personal services in managing and caring for the property. See Roger A. Cunningham et al., The Law of Property

§ 5.12 at p. 228 (West 1993) (citing Goodenow v. Ewer , 16 Cal. 461 (1860); Baird v. Moore , 141 A.2d 324 (N.J. Super. C t. App. Di v. 1958); Myers v. Bolton , 52 N.E. 114 (N.Y. 1898)). There is no evidence of

such an agreeme

nt in this case

and the testimony of the parties makes it clear that at the time services were rendered, compensation was not contemplated. For the foregoing reason s, we ho ld that none of the parties are entitled to receive compensation for the value of services rendered for the care and management of the jointly held estate. The judgment of the trial court awarding Steve Bunch $4,850.00is reversed , and his counterclaim

is dismissed. The judgment is otherwise affirmed. Costs of the appeal are assessed against the appellants.

_________________________________7 W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ HOLLY KIRBY LILLARD, JU DGE

____________________________________ HEWITT P. TOMLIN, JR. SENIOR JUDGE