GA Code § 44-6-167 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 6 - Estates|Article 7 - Tenancy in Common|Part 2 - Partition|Subpart 2 - Statutory Partition|§ 44-6-167. When Sale of Lands Ordered; Procedure; Place of Sale; Notice

 In the event lands and tenements sought to be partitioned are not sold pursuant to Code Section 44-6-166.1, the court shall order a public sale of such lands and tenements. The court shall appoint three discreet persons as commissioners to conduct such sale under such regulations and upon such just and equitable terms as it may prescribe. The sale shall take place on the first Tuesday in the month, shall be at the place of public sales in the county in which the land is located, and shall be advertised in some public newspaper once a week for four weeks. This Code section shall not be construed to change the place of sale in those counties where by law sheriffs' sales are required to take place at the courthouse.   (Laws 1837, Cobb's 1851 Digest, p. 584; Code 1863, § 3903; Code 1868, § 3927; Code 1873, § 4003; Code 1882, § 4003; Ga. L. 1887, p. 29, § 1; Civil Code 1895, § 4793; Ga. L. 1903, p. 40, § 1; Civil Code 1910, § 5365; Code 1933, § 85-1511; Ga. L. 1983, p. 1182, § 2.)   Editor's notes.   - Provisions which, prior to the 1983 amendment of this section, appeared in the first sentence of this Code section now appear in § 44-6-166.1. Applicable case notes have been transferred to § 44-6-166.1.   Law reviews.   - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).   JUDICIAL DECISIONS   Availability of remedy.    - Even if a party in interest does not pursue the remedy under O.C.G.A. § 44-6-166.1, the petitioner may still seek a public sale under O.C.G.A. § 44-6-167 by convincing the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements on the property because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for. Stone v. Benton, 258 Ga. 539, 371 S.E.2d 864 (1988).   When petitioner may pursue remedy of public sale.    - First tenant in common was only entitled to pursue the remedy of a public sale under O.C.G.A. § 44-6-167 if the first tenant in common filed a direct action under that statute and argued that a fair and equitable division of the property, the first tenant in common and the second tenant in common's sign, could not be made under O.C.G.A. § 44-6-166.1, but since the first tenant in common did not do that and merely refiled the first tenant in common's action under O.C.G.A. § 44-6-166.1 and asserted the same claims that had been previously rejected, the trial court was entitled to award attorney fees to the second tenant in common. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 582 S.E.2d 180 (2003).    Application to partition certain land is a purely statutory proceeding. Nash v. Williamson, 212 Ga. 804, 96 S.E.2d 251 (1957).   Statutory partition more appropriate.    - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496, 755 S.E.2d 126 (2014).   Petition not made equitable merely by allegations of uncertainty of interests and difficulty of partitioning.    - Allegations in a petition that there was some uncertainty about all parties having an interest in the land and praying for the appointment of a guardian ad litem for unnamed parties at interest, and alleging that the property could not be partitioned by metes and bounds, do not make the petition an equitable one for partition. Brinson v. Thornton, 220 Ga. 234, 138 S.E.2d 268 (1964).   Prayer for accounting insufficient to render action equitable.    - Equity does not have jurisdiction of a purely statutory partition case merely because the application prays for an accounting as to grantors when there was no filing of a suit and summons and process. Bodrey v. Bodrey, 225 Ga. 822, 171 S.E.2d 614 (1969), overruled on other grounds, Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975).   Notice of petition provisions inapplicable when petition prays for sale of lands.    - When the petition stated an equitable cause of action for partition and accounting under former Code 1933, § 85-1511 (see O.C.G.A. § 44-6-167), the notice provisions of former Code 1933, § 85-1506 (see O.C.G.A. § 44-6-162) did not apply. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).   Sale notice provision complied with by inserting advertising in each of four preceding calendar weeks.    - Term "once a week for four weeks" is complied with by the insertion of the advertisement in each of the four calendar weeks preceding that in which the sale is had, although 28 days do not elapse between the date of the first insertion and the date of the sale. Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942).   Sale terms and conditions left to commissioners, subject to court review.    - Statute clearly does not require the trial court to prescribe the regulations and terms governing the sale, but is directory only. Discretion as to the terms and conditions of the sale is left to the commissioners, whose actions are subject to review by the trial court in the confirmation proceedings. Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975) (see O.C.G.A. § 44-6-167).    Discretion as to the terms and conditions of the sale is left to the commissioners, whose actions are subject to review by the trial court in the confirmation proceedings. Bernstein v. Bernstein, 235 Ga. 220, 219 S.E.2d 100 (1975).   Sale order failing to prescribe terms not invalid if nobody deceived.    - Order of sale is not invalid if the order only failed to prescribe the terms and conditions of the sale; i.e., whether for cash or on terms, as long as nobody was misled or deceived by the manner in which the sale was conducted. Bernstein v. Bernstein, 235 Ga. 220, 219 S.E.2d 100 (1975).   Changes occurring after sale cannot mandate partition in kind.    - Changes in conditions occurring after an order of sale which facilitate partition by metes and bounds do not mandate such a division. McClain v. McClain, 241 Ga. 162, 243 S.E.2d 879 (1978).    Costs of upkeep, improvements, and repair of the property were not considered "contributions" when dividing the proceeds of the sale of the property pursuant to a written agreement between the parties which stated that the property would be divided "to the extent of each party's contribution." Maree v. Phillips, 272 Ga. 52, 525 S.E.2d 94 (2000).   Parties entitled to have accounts adjusted after sale.    - In a suit for equitable partition, sale of the property, and satisfaction of all liens, each party is entitled to have each party's accounts and claims adjusted by the court after the sale and before the distribution of the proceeds. In so doing, the court should consider expenditures of either party for improvements to the property, taxes or other expenses, and income received by either party from the rental of the property. Baker v. Baker, 242 Ga. 525, 250 S.E.2d 436 (1978).   Attorney's fees not authorized.    - Former Civil Code 1910, §§ 5365 and 5366 (see O.C.G.A. §§ 44-6-167 and44-6-168) did not authorize the award from the fund of fees for the attorneys representing the applicants for partition. Neal v. Neal, 140 Ga. 734, 79 S.E. 849 (1913).    Sale is subject to confirmation by the court. Oswald v. Johnson, 140 Ga. 62, 78 S.E. 333, 1914 Am. Ann. Cas. 1 (1913).    Because all parties received proper notice of the partition action and, in fact, agreed to the entry of a final consent judgment of partition which gave rise to the trial court's authority to order the public sale, the trial court properly confirmed the sale of the property and directed the parties and parties in interest to execute the deeds. Jacobs v. Young, 291 Ga. 778, 732 S.E.2d 69 (2012).    Any party in interest may file objections to the confirmation at the term of the court to which the commissioners conducting the sale make their report, if done before the confirmation. Oswald v. Johnson, 140 Ga. 62, 78 S.E. 333, 1914 Am. Ann. Cas. 1 (1913).    Jurisdiction of appeal from judgment in action involving statutory partitioning proceedings is in Supreme Court. Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975).   Appeal not timely until judge appoints commissioners and orders sale.    - In a case where a partition is sought by bringing the lands involved to sale, the objecting party may only bring the case to the Supreme Court by a proper bill of exceptions after the judge has appointed commissioners and ordered the commissioners to sell the land. Lanier v. Gay, 195 Ga. 859, 25 S.E.2d 642 (1943).    Cited in Lankford v. Milhollin, 197 Ga. 227, 28 S.E.2d 752 (1944); Wood v. W.P. Brown & Sons Lumber Co., 199 Ga. 167, 33 S.E.2d 435 (1945); Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755 (1958); Bufford v. Bufford, 221 Ga. 13, 142 S.E.2d 796 (1965); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396, 144 S.E.2d 764 (1965); White v. Howell, 224 Ga. 135, 160 S.E.2d 374 (1968); Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969); Hames v. Shaver, 229 Ga. 412, 191 S.E.2d 861 (1972); Gray v. Hall, 233 Ga. 244, 210 S.E.2d 766 (1974); Brannon v. Simpson, 244 Ga. 58, 257 S.E.2d 541 (1979); Iteld v. Silverboard, 247 Ga. 158, 275 S.E.2d 645 (1981); Silverboard v. Iteld, 248 Ga. 589, 285 S.E.2d 182 (1981).   RESEARCH REFERENCES   Am. Jur. 2d.   - 59A Am. Jur. 2d, Partition, §§ 99, 100, 131 et seq.   C.J.S.   - 68 C.J.S., Partition, §§ 230 et seq, 293, 303.   ALR.   - Timber rights as subject to partition, 21 A.L.R.2d 618.   Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.