These appeals are from orders entered in a statutory partitioning proceeding initiated in December 1999 by Sharon Brooks, individually and as administratrix of the estate of Roy Dean Hale and as executor of the estate of Winifred Hale her parents, and her siblings collectively, “Brooks”. The partitioning sought to divide 50.77 acres of property in Gwinnett County that would remain after a pending school condemnation proceeding took approximately seven acres of the remnant of the property purchased in 1949 by Roy Dean Hale and Jess Coker Winifred Hale’s brother. The partitioning action was stayed in April 2000 on the motion of Coker Properties successor to Jess Coker’s interest which contended Brooks were entitled to only a 25 interest in the land sought to be partitioned and urged that the respective rights of the parties be determined prior to partitioning. The partitioning action was reinstated in May 2003 following the filing of the Court of Appeals’s remittitur in the condemnation case. In the condemnation case, it was determined that Coker Properties owned 75 of the property and Brooks owned 25 of the seven-acre parcel being condemned. In opposition to Brooks’s motion to lift the stay in the statutory partitioning, Coker Properties contended the land ownership issue had been decided in the condemnation proceeding and asked the court to re-confirm that finding in this case. Coker Properties also moved for an equitable accounting, alleging that Brooks had never paid taxes or maintenance expenses on the property, and sought equitable contribution from Brooks for the monies expended by Coker Properties and for a lien on the property. Coker Properties asked the trial court to exercise its equity jurisdiction and treat the partition proceeding as an equitable partitioning under OCGA § 44-6-140 et seq. due to the circumstances of the case. The trial court denied Coker Properties’ motion and issued a certificate of immediate review.
In December 2002, Jess and Mary Virginia Coker filed a motion to intervene in the partitioning action based on the fact that Jess was the predecessor in interest of Coker Properties and both Jess and Mary Virginia claimed a right of reimbursement/contribution for 25 of the expenses Jess incurred in paying taxes and insurance and making repairs and maintaining the property when he owned the property with Roy Dean and Winifred Hale from 1949 to 1991. The trial court denied the motion to intervene and issued a certificate of immediate review. We granted the subsequent applications for interlocutory review, posing the following questions: Did the trial court err when it declined to exercise equitable jurisdiction in the partitioning proceeding Did Jess Coker’s right of contribution survive his 1991 quitclaim deed to Coker Properties If so, did the trial court err when it denied Jess Coker’s motion to intervene 1. In Case No. S04A0997, Coker Property enumerates as error the trial court’s refusal to convert the statutory partitioning case into an equitable partition case. “Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.” OCGA § 44-6-140. One circumstance which warrants equitable partitioning is a claim for accounting between co-tenants. Taylor v. Sharpe , 221 Ga. 282 1 144 SE2d 390 1965; Mills v. Williams , 208 Ga. 425 1 67 SE2d 212 1951 “Accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there be other peculiar circumstances which render the proceeding in equity more suitable and just.” This case presents, in addition to a claim for an accounting which would itself warrant the exercise of equitable jurisdiction, a claim for contribution, an assertion of estoppel, and the complicating factors arising from the lack of a written agreement contemporaneous with the purchase regarding the extent of ownership of the original co-tenants, the division of the property by the construction of a highway through it, the sale of a portion of the property 20 years ago, the condemnation of a portion of the remaining property, and the death of one of the original co-tenants. Given the extent of the complications here, this case presents the “peculiar circumstances” which render a proceeding in equity more suitable and just. Accordingly, we conclude the trial court erred in refusing to convert the statutory partitioning action to an equitable partitioning action, and reverse that judgment.
