Instead, it ordered the sheriff to sell the property as one parcel at public auction. Eleanor and Norman appeal. Analysis Eleanor and Norman contend the trial court erred by concluding that partitioning the property would prejudice the parties. They argue that there was no evidence indicating whether the value to be realized at a sheriff's sale was greater or less than the fair market value of the property divided into three parts. We are not persuaded.
Partition is an equitable proceeding, and a court of equity seeks to do justice between the parties.
The basis of all equitable rules is the principle of discretionary application. Here, the trial court made findings of fact and exercised its discretion by granting equitable relief. After trial, a court may order partition along undisputed lines, order partition and appoint a referee, or determine that partition would prejudice the parties and order a sale of the property. If the court finds that the land or any portion thereof is so situated that partition cannot be made without prejudice to the owners, and there are no tenants or lienholders, it may order the sheriff to sell the premises so situated at public auction. This third option is referred to as partition by sale.