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Pack v. Mahan

The trial court erred in nominally awarding an equitable partition when the legal remedy of statutory partitioning was adequate and no peculiar circumstances would render an equitable proceeding more suitable and just.

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This is an appeal from an order directing the equitable partition by sale of 3.503 acres in Union County, real property in which appellant Brittany Pack and appellee Sidney C. Mahan, Jr. both have interests as tenants in common. Mahan sought the equitable partition and sale of the property, and in response to his petition, Pack urged that statutory partition was an adequate remedy and that the property should be divided by metes and bounds. Following an evidentiary hearing, the trial court concluded that the property could not be fairly divided by metes and bounds, and it granted the petition for an equitable division by sale. Pack appeals,1 and we agree with her that the order of the trial court is nominally erroneous, insofar as statutory partition is an adequate remedy in this case and no peculiar circumstances require an equitable partition. But even in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds, and we see no error in the finding that the property here cannot be fairly divided. Accordingly, we affirm the direction that the property be sold, but we vacate the judgment to the extent that it purports to order the sale as an equitable rather than a statutory partition, and we remand for the court to conform its judgment to the requirements for a statutory partition.

Georgia distinguishes between “equitable” partition, OCGA § 44-6-140 et seq., and “statutory” partition, OCGA § 44-6-160 et seq. See Burnham v. Lynn, 235 Ga. 207 219 SE2d 111 1975. See also Hart v. Hart, 245 Ga. App. 734, n. 2 538 SE2d 814 2000. This nomenclature, however, has led to some confusion, insofar as equitable and statutory partitions alike must account for certain equities. In a statutory partition,

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