Possession of land as notice of right and title.

- Former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945).

Adverse possession found.

- Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's child, albeit the fact that it was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest it until suit was filed. Matthews v. Crowder, 281 Ga. 842, 642 S.E.2d 852 (2007).

Applicability when alleged cotenant claims as sole grantee.

- Section inapplicable when alleged cotenant in possession never expressly or impliedly recognized such a relation, but claimed title and held possession under a deed made to that cotenant as the sole grantee. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942); Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (see O.C.G.A. § 44-6-123).

When a person claiming prescriptive title does not enter possession as a cotenant but as owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982).

When the copossessors were never cotenants, O.C.G.A. § 44-6-123 has no application. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983).

Mineral owner and landowners are not tenants in common in the usual sense since the landowners own the fee subject to the rights of the mineral owner in one-half of the mineral interests. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983).

Tenants in common occupy a fiduciary relationship to each other, with respect to their interest in the common property and the common title under which the tenants hold, that it would be inequitable to permit one of the tenants, without the consent of the others, to buy an outstanding adversary's claim to the common estate and assert it for one's exclusive benefit, to the injury or prejudice of one's cotenants; and if one cotenant does actually acquire such a claim, the cotenant is, unless the contrary appears, to be regarded as holding it in trust for the benefit of the cotenants in proportion to their respective interests. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

Elements of adverse possession against cotenant.

- In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, but also at least one of the elements of O.C.G.A. § 44-6-123. Wright v. Wright, 270 Ga. 530, 512 S.E.2d 618 (1999).

Seven years possession required to get title.

- Purchaser must maintain actual adverse possession for seven years under color of title to get title. Doe v. Roe, 46 Ga. 9 (1872); Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898).

Exclusive possession by a cotenant alone will be presumed not an adverse holding, but simply one in support of the common title. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).

Silent and peaceable possession of one tenant, with no act which can amount to an ouster of one's cotenants, is not adverse. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

Demand required.

- Plaintiffs could not contend that the defendant was "in exclusive possession after demand," because the evidence showed no demand by the plaintiff upon the defendant for the possession of their interest in the land. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909).

Exclusive possession after demand required.

- Correct statement of the law is that the cotenant must show exclusive possession after demand, and not that the cotenant demanded such exclusive right. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (1930).

Notice of ouster held insufficient.

- Sale of one tenant's interest at judicial sale, without actual possession being taken, is insufficient notice of ouster to the cotenant as to start statute to running. Harriss v. Howard, 126 Ga. 325, 55 S.E. 59 (1906).

Party who alleges title by prescription has burden of proving title, and when it is contended that a former tenant in common acquired prescriptive title as against one's former cotenants, the party asserting such contention has the burden of proving not only the usual elements of prescription but also at least one of the conditions stated in this statute as to cotenants. Harris v. Mandeville, 195 Ga. 251, 24 S.E.2d 23 (1943); Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972); Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972); Barfield v. Hilton, 235 Ga. 407, 219 S.E.2d 719 (1975) (see O.C.G.A. § 44-6-123).

Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161 but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Knowledge of adverse claim is question for jury. Gann v. Runyan, 134 Ga. 49, 67 S.E. 435 (1910).

Substitution of "actual notice" for "express notice" in jury charge is not error. David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913).

Exception to statute inapplicable.

- When the mother and children obtained possession of the decedent's property by falsely informing the probate court that they were the only heirs at law when the son was also an heir at law, the trial court improperly applied the exception to O.C.G.A. § 44-6-123, as questions of fact remained as to whether the wife and children took possession of the subject property with implied knowledge that there was a tenancy in common with the son as a joint heir. Ponder v. Ponder, 275 Ga. 616, 571 S.E.2d 343 (2002).

Cited in Coppedge v. Coppedge, 144 Ga. 466, 87 S.E. 392 (1915); Cowart v. Strickland, 170 Ga. 530, 153 S.E. 415 (1930); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941); Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941); Yeager v. Weeks, 74 Ga. App. 84, 39 S.E.2d 84 (1946); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950); Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951); Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953); Lankford v. Dockery, 87 Ga. App. 813, 75 S.E.2d 340 (1953); Varellas v. Varellas, 218 Ga. 125, 126 S.E.2d 680 (1962); Crosby v. Crosby, 224 Ga. 109, 160 S.E.2d 362 (1968); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Thomas v. Hooks, 231 Ga. 409, 202 S.E.2d 92 (1973); Lovin v. Poss, 240 Ga. 848, 242 S.E.2d 609 (1978); Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Love v. Love, 259 Ga. 423, 383 S.E.2d 329 (1989).

Identification of premises necessary for color of title.

- Color of title cannot arise or serve to give right of possession when it is not possible to identify the premises. Newsome v. Moore, 166 Ga. 301, 143 S.E. 400 (1928).

Deed pursuant to court order.

- When a deed specifically stated that the property was "conveyed pursuant to the order" granting the year's support, grantee was only conveyed such interest as was set aside to the widow under the year's support order, which was an undivided interest equal to that of each of the widow's minor children; therefore, grantee could prescribe against the grantee's cotenants (the children) only by showing ouster, exclusive possession after demand, or express notice of adverse possession. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982).

Possession of more than proportionate share.

- That one cotenant may occupy more than one's proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one's possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, O.C.G.A. § 44-5-161, but also at least one of the elements of O.C.G.A. § 44-6-123. But, when a person claiming prescriptive title does not enter possession as a cotenant but as the owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Gigger v. White, 277 Ga. 68, 586 S.E.2d 242 (2003).

Conveyance to third party is ouster.

- Statute means that when two persons hold as cotenants, one cannot prescribe against the other, except under those circumstances. But if one cotenant makes a deed to the whole property and the grantee takes possession and holds adversely, not as a cotenant, but as sole owner, this is such an ouster as that prescription will run. See Doe v. Roe, 46 Ga. 9 (1872); Doe v. Roe, 46 Ga. 593 (1872); Cain v. Furlow, 47 Ga. 674 (1873); Norris v. Dunn, 70 Ga. 796 (1883); McDowell v. Sutlive, 78 Ga. 142, 2 S.E. 937 (1886); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903) (see O.C.G.A. § 44-6-123).

If the administrator of a deceased cotenant sells and makes to the purchaser a deed to the entire property, and one claiming under such purchaser holds possession thereof under a duly recorded deed conveying the entire property, not as a cotenant but as sole owner of the entire property, there is an actual ouster of the other cotenants, and the latter have the right to sue for the possession of their interest. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909).

When a tenant in common conveys the whole lot to a third person, and the grantee takes possession, claiming the entire lot as the grantee's own, this action constitutes a disseizin and ouster of the other tenants in common, and they are barred from asserting their right to such property after the expiration of seven years. Broadwater v. Parker, 209 Ga. 801, 76 S.E.2d 402 (1953); Davis v. Harnesberger, 211 Ga. 625, 87 S.E.2d 841 (1955).

When the evidence shows that there was an actual ouster or express knowledge of adverse possession, a deed executed by a cotenant to the whole of the property is good as color of title as against the other cotenants. Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972).

Because the parties were cotenants under O.C.G.A. § 44-6-120, and one of the cotenants was on notice as to the other cotenant's heirs' adverse possession under O.C.G.A. § 44-6-123, which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609, 619 S.E.2d 641 (2005).

Erecting fence to divide common property.

- Entering into possession of a portion of a cemetery lot, which is enclosed by a fence, by one claiming to be the owner of such portion, and erecting a substantial iron fence so as to divide the part so claimed from the remaining part of the lot, is, as to that peculiar character of property, an act showing adverse possession of a public nature, totally irreconcilable with cotenancy, and amounts to an actual ouster of others claiming to be tenants in common with the possessor. Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362, 53 L.R.A. 729 (1901).

Possession under order of year's support for widow.

- When a landowner's estate was set apart as a year's support for his widow and three children by her, without mentioning two children of the decedent by a former marriage, and the persons to whom the year's support was so set apart took exclusive possession of the property under claim of title, this constituted a severance from the other children, and a prescriptive title began to run. Norris v. Dunn, 70 Ga. 796 (1883).

Merely recording deed from one tenant in common to a third person does not constitute actual ouster of other cotenants. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Possession of property by party who stands in position of tenant of cotenant does not constitute actual ouster of other tenants in common. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Possession under conveyance from third person.

- There is a material difference between the effect of a deed or transfer by a tenant or tenants in common purporting to convey the whole estate to a stranger, and a transaction in which such a deed or transfer is made by an outsider to a tenant in common. In the former case, possession by the grantee may amount to an ouster or disseizin, while in the latter case a different rule applies. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Requirement of ouster.

- Trial court properly granted summary judgment to defendant pursuant to O.C.G.A. § 9-11-56 on plaintiff's claim for adverse possession of land; O.C.G.A. § 44-6-123 required an adverse-possessor cotenant to effect an actual ouster against the other cotenant, and in this case, it was undisputed that plaintiff took no action to effect an actual ouster of defendant. Vaughn v. Stoenner, 276 Ga. 660, 581 S.E.2d 543 (2003).

Evidence insufficient to support ouster.

- Only evidence of an adverse holding is the bare fact that the vendors of the defendant were in the exclusive possession by their tenants or agents, and that what rents were collected from the land were paid to them, their agent testifying that he knew of no other owner or claimant of the premises. This is not sufficient to make out a case of adverse holding by one cotenant against another. Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898).

When land was owned by two persons as tenants in common, and one of them took a deed from a third person purporting to convey to himself the whole of the common property, and had such deed recorded, and when the conveyance amounted to nothing more as between the cotenants than the removal of an encumbrance for which they were both liable, possession of the land by the grantee, under such deed, would not (assuming good faith) constitute such an ouster of the other cotenant as would lay a foundation for the commencement of adverse possession against him, unless it was accompanied by a hostile claim of which he had actual notice. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Possession of heir of deceased grantee in certain deeds was that of the other heirs standing in the same relationship as cotenants, and in the absence of actual ouster, exclusive possession after demand or express notice of the adverse possession, the devisee did not acquire prescriptive title as against cotenants by such possession. Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947).

By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant's right to be on the property, which did not establish an ouster or to satisfy an "express notice" or a "hostile claim" criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569, 629 S.E.2d 230 (2006).

Evidence sufficient to support ouster.

- Evidence was sufficient to enable the jury to conclude that a property owner met the burden of showing ouster because the owner and an uncle did more than simply make improvements and pay property taxes; the owner and uncle took unequivocal steps, including renting a part of the premises to different people and cutting and selling timber, which were inconsistent with, and exclusive of, the rights of the cotenants not in possession, and those acts were open and public. DeFoor v. DeFoor, 290 Ga. 540, 722 S.E.2d 697 (2012).

Am. Jur. 2d.

- 3 Am. Jur. 2d, Adverse Possession, §§ 145, 212 et seq.

C.J.S.

- 86 C.J.S., Tenancy in Common, §§ 15, 19, 20, 30 et seq.

ALR.

- Right of cotenant to acquire and assert adverse title or interest as against other cotenants, 54 A.L.R. 874; 85 A.L.R. 1535.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R.2d 1214.

Adverse possession between cotenants, 82 A.L.R.2d 5.

Law reviews.

- For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

When remedy at law is required for partition.

- Unless, due to reasons stated in former Code 1933, § 85-1501 (see O.C.G.A. § 44-6-140) equitable jurisdiction was applied, the parties seeking a partition of lands were required to resort to the remedy at law. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

Petition for partition and accounting presents case in equity.

- Petition which not only embraces a statutory application for partition but also prays for an accounting from cotenants for rents and profits presents a case in equity. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

Writ of mandamus cannot compel commissioner appointed by the court to partition lands to discharge duty. The duties of a commissioner appointed by the court to partition lands are purely administrative, and to issue a mandamus to require one of the commissioners to act would be the equivalent of the court ordering itself to act. Failure to act might be grounds for contempt proceedings but not mandamus. Lankford v. Kirkland, 207 Ga. 504, 62 S.E.2d 836 (1950).

Attorney's fees in partition proceeding.

- When there is only a statutory proceeding for partition of lands, attorney's fee for the moving party cannot be deducted from the proceeds of sale by the partitioners as a part of the expense contemplated by that statute. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

When petition for partition constitutes election to sell interest.

- When a written agreement between tenants in common provides that either party may sell that party's interest in the property, the filing of a petition for partition by one of the tenants in common constitutes an election to sell one's interest in the property. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).

Cited in McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Nixon v. Nixon, 197 Ga. 426, 29 S.E.2d 613 (1944); Johnson v. Flanders, 92 Ga. App. 697, 89 S.E.2d 829 (1955); Lowe v. Loftus, 314 F. Supp. 620 (S.D. Ga. 1970).

ALR.

- Partition: division of building, 28 A.L.R. 727.

Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 A.L.R. 741.

Interference by court with decision of commissioners in partition suit, 46 A.L.R. 348.

Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 46 A.L.R. 634; 106 A.L.R. 906.

Right of executor or administrator to bring proceedings for partition of real property, 57 A.L.R. 573.

Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 A.L.R. 352.

Testamentary provisions operating to prohibit or postpone partition, 85 A.L.R. 1321.

Partition as affecting pre-existing mortgage or other lien on undivided interest, 93 A.L.R. 1267.

Power of court in partition proceedings to direct sale of property without aid of or contrary to recommendation of commissioner or referee, 95 A.L.R. 1330.

Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase for purposes of statute of descent and distribution, 103 A.L.R. 231.

Parol partition or division of real property as between undivided interests held by same person in different capacities, 116 A.L.R. 626.

Cotenant's right to allowance in partition in respect of amount paid to discharge mortgage or other lien upon premises as affected by statute of limitations or laches, 117 A.L.R. 1442.

Right of party to voluntary partition, or of his successor, as against other parties thereto, or their successors, where title fails as to parcel, or part of parcel, conveyed to him, 123 A.L.R. 489.

Holder of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 A.L.R. 414.

Parol partition and the statute of frauds, 133 A.L.R. 476.

Right to, and effect of, partition of undivided interests held respectively in fee and in life estate with remainder, 134 A.L.R. 661.

Homestead right of cotenant as affecting partition, 140 A.L.R. 1170.

Right to partition in kind of mineral or oil and gas land, 143 A.L.R. 1092.

Dower and homestead rights as affecting partition proceedings, 159 A.L.R. 1129.

Partition: construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 A.L.R. 862.

Partition of undivided interests in minerals in place, 173 A.L.R. 854.

Burden of proof in partition suit as regards alleged prior voluntary partition of property, 1 A.L.R.2d 473.

Timber rights as subject to partition, 21 A.L.R.2d 618.

Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643.

Maintainability of partition action where United States or state owns an undivided interest in property, 59 A.L.R.2d 937.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Right to partition of overriding royalty interest in oil and gas leasehold, 58 A.L.R.3d 1052.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Subpart 1 Equitable Partition

44-6-140. When equitable partition authorized.

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.

(Orig. Code 1863, § 3115; Code 1868, § 3127; Code 1873, § 3183; Code 1882, § 3183; Civil Code 1895, § 4783; Civil Code 1910, § 5355; Code 1933, § 85-1501.)

Enjoining partition.

- It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29, 295 S.E.2d 736 (1982).

Cited in Mayer v. Hover, 81 Ga. 308, 7 S.E. 562 (1888); Wallis v. Watson, 184 Ga. 38, 190 S.E. 360 (1937); Joel v. Joel, 201 Ga. 520, 40 S.E.2d 541 (1946); Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Givens v. Dunn Labs., Inc., 138 Ga. App. 26, 225 S.E.2d 480 (1976).

Equity may adjust complicated and unascertainable interests.

- When the title to land is in tenants in common, and their several interests have become complicated and cannot be definitely ascertained and set apart at law, equity will entertain jurisdiction to adjust by one decree the rights of all. Fountain v. Davis, 71 Ga. App. 1, 29 S.E.2d 798 (1944); Waycross Military Ass'n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).

Plaintiff must prove necessity for equitable relief.

- Unless equitable jurisdiction is applied, parties seeking partition are required to resort to legal remedy. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

While a petition will not be dismissed if the petition states a claim for either legal or equitable partition, the plaintiff must prove the necessity for equitable relief in order to justify the equitable decree. Burnham v. Lynn, 235 Ga. 207, 219 S.E.2d 111 (1975).

Plaintiff in an action for equitable partition must show that there is a necessity for equitable relief or that circumstances make equitable relief more just and suitable. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

Need for obstacle to legal remedy, or peculiar circumstances.

- Section is inapplicable unless there is obstacle rendering legal remedy less ample and adequate. Greer v. Henderson, 37 Ga. 1 (1867); Rosenberg v. Phelps, 159 Ga. 607, 126 S.E. 788 (1925) (see O.C.G.A. § 44-6-140).

When no peculiar circumstances are shown, equity will not take cognizance of a partition action. Saffold v. Anderson, 162 Ga. 408, 134 S.E. 81 (1926).

An application to partition lands between tenants in common may be instituted at law, or it may be brought in equity whenever the remedy at law was insufficient or peculiar circumstances render the proceeding in equity more suitable and just. Unless for some special reason equitable jurisdiction was applicable, a party seeking the writ of partition was required to resort to the remedy afforded by former Code 1933, § 85-1504 (see O.C.G.A. § 44-6-160). Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).

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).

Equitable partition considered separately from petition at law.

- When a tenant in common alleges grounds for an equitable partition, the petition constitutes a separate case from the petition at law and must be treated accordingly. Frierson v. Dye, 150 Ga. 206, 103 S.E. 162 (1920).

Action properly treated as one in equity for partitioning when defendant claimed title by prescription.

- When the title and interests to realty of the parties in dispute over construction of the will had become more complicated by defendant's claim of title by prescription, the trial court did not err in treating the action as one in equity for partitioning. Bailey v. Johnson, 247 Ga. 657, 278 S.E.2d 384 (1981).

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 defeated because opposing party owns life estate in other undivided interests.

- One who holds title to an undivided interest in land may not, in an action to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Johnson v. Wilson, 212 Ga. 264, 91 S.E.2d 758 (1956).

Tenants excluded from possession may maintain action.

- When one cotenant is in exclusive possession and denies the title of the others, the tenants so excluded may maintain an action for partition. Hatton v. Johnson, 150 Ga. 218, 103 S.E. 233 (1920).

When there is an agreement between the tenants in common to divide severable property, in pursuance of which the portion of one cotenant is allotted to that cotenant, that cotenant may, upon demand and refusal to deliver the property, maintain an action for the conversion thereof against the former cotenant, having the property in that tenant's possession, although this portion was never in fact separated from the residue. Hemphill v. Hemphill, 62 Ga. App. 358, 7 S.E.2d 762 (1940).

Section applicable where matters of account involved.

- When matters of an account against a cotenant are involved and a sale is necessary to partition, this statute applies. Lowe v. Burke, 79 Ga. 164, 3 S.E. 449 (1887) (see O.C.G.A. § 44-6-140).

When matter of account against an insolvent cotenant for past profits of the land is involved, and where partition of the premises cannot be made without a sale, equity has jurisdiction to decree a partition and account. The element of account and insolvency will give equity jurisdiction. Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950).

While equity jurisdiction ceases when the legislature gives a specific remedy at law, a specific legal remedy for partition is provided, and equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an 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. Mills v. Williams, 208 Ga. 425, 67 S.E.2d 212 (1951).

Property which is owned jointly may be partitioned in a divorce action by the court as in an equitable proceeding. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

In divorce cases heard without a jury, as equitable proceedings, a trial judge may divide property as equity demands, regardless of which party receives an award. Reaves v. Reaves, 244 Ga. 102, 259 S.E.2d 52 (1979).

Partition unavailable for unmarried parties' property.

- When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637, 805 S.E.2d 817 (2017).

Owner of water easement as necessary party.

- While all parties having an interest in the property sought to be partitioned must be named defendants, since the United States government had an easement or grant of two-thirds of the water flow to the spring located on the land to which all the interests of all the tenants in common were subject, and only the property was sought to be partitioned, it was not necessary for the United States government to be named as a party defendant, even if such might be done with or without its permission and consent. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957).

Effect of agreement on partition action.

- Generally, party will not be decreed partition if it would be contrary to the party's agreement. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).

Objections to return of appointed commissioners not timely filed.

- Since equity has jurisdiction in cases of partition, it is too late to file objections to the return of the appointed commissioners when the return has been entered up as the judgment of the court with the knowledge of both parties to the proceeding. Drew v. Drew, 151 Ga. 11, 105 S.E. 469 (1921).

Appeal in partition action to enforce separation agreement.

- Although it had its roots in the parties' divorce action, an action for an equitable partition to enforce the separation agreement which was part of the divorce decree is a new action and not merely a continuation of the divorce action. For this reason, O.C.G.A. § 5-6-35 does not apply to this situation, and husband's direct appeal from the partition order is proper. Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

Court has power to determine all various matters in dispute.

- When a tenant in common applies to the superior court to have certain land so held partitioned, and to have an accounting between the tenants in common, such a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Court decree transfers title.

- Whether the division of a estate was entered into under the provisions as to the distribution of estates in kind, or was made under the provisions as to the partition of estates by agreement of the parties, the division award of the commissioners, which was approved and made the decree of the court, was sufficient to transfer title out of the estate and the heirs to the persons to whom the particular portions of the estate were awarded. Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951).

Partitionship may be accomplished through receivership.

- There is no reason why partitionment in equity may not be fully and effectually accomplished through and by receivership. Waycross Military Ass'n v. Hiers, 209 Ga. 812, 76 S.E.2d 486 (1953).

Court may adjust cotenants' accounts.

- Having properly assumed jurisdiction for the partition of the property of the cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81, 701 S.E.2d 856 (2010).

Court may make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Compensation allowed for counsel in proper case.

- In an equitable partition proceeding, the judge of the superior court before whom the proceeding is pending has the power under general equitable doctrine, in a proper case and where the circumstances justify it, to allow compensation for the plaintiff's counsel as a charge against the fund arising from the sale of the land partitioned. Especially is this true when other equities are involved, such as the settlement of involved accounts between the parties, when deeds are canceled, and when a receiver is appointed to manage and sell properties. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).

In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees but, in an equitable proceeding for partitionment and for other relief, an allowance for attorney's fees may be made by the court from the common fund. Cashin v. Markwalter, 208 Ga. 444, 67 S.E.2d 226 (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974).

Equitable partition found authorized.

- When two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and when, after the station had been used by both companies jointly and individually for several years, the company that did not own the land became insolvent, and all the company's property, including the company's interest in the station, was duly sold under foreclosure proceedings and purchased by private individuals, and since the railroad of this company was dismantled and its business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225, 152 S.E. 243 (1930).

When a divorce decree made no provision for alimony, and when the petition of the wife alleges that the defendant is disposing and threatening to dispose of property owned in common, and that he is insolvent, and the wife prays for a money judgment and an injunction, the petition is sufficient to allege reasons for an equitable partition and an accounting, rather than by a partition at law. Wallack v. Wallack, 211 Ga. 745, 88 S.E.2d 154 (1955).

In a partition action in which the parties disputed the extent of one party's interest in the property, and one party counterclaimed for an equitable division, accounting, and contribution, claiming to have paid all taxes and maintenance costs for over 20 years, the need for an accounting between the tenants in common, alone, gave the trial court equity jurisdiction to decide the matter. Ransom v. Holman, 279 Ga. 63, 608 S.E.2d 600 (2005).

Minority owner's claim of error in the partitioning of a parcel of property was rejected as, while a pending contract with a prospective buyer was taken into consideration, the property was partitioned in the way desired by the minority owner and the surveyor; the minority owner received tracts that were worth more than the owner would have been received if the property had remained intact and had been sold to the buyer and the owner received tracts valued at more than the interest owned before the partitioning. Talmadge v. Elson Props., 279 Ga. 268, 612 S.E.2d 780 (2005).

Agreement to occupy home not partnership.

- Agreement between the cotenants of a city lot, on which is located a residence, to occupy the residence jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the co-owners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292, 26 S.E.2d 538 (1943).

Equitable accounting found authorized.

- When the petitioner in a partitioning proceeding prays for an accounting for water sold from a spring on property to be partitioned by one of the tenants in common, and alleges that a lease agreement, whereby the petitioner's interest in the water rights had been granted to the city, had been declared void by a court decision and that one has not received compensation for vast quantities of water used from the spring, the only accounting available to the petitioner is one in equity, there being no adequate remedy at law for an accounting for the use of the water by another tenant in common. City of Warm Springs v. Bulloch, 213 Ga. 164, 97 S.E.2d 582 (1957).

Distribution of sales proceeds upheld in real estate transaction.

- In a dispute over real property and specific performance of a Redemption Agreement, the trial court did not abuse the court's discretion in making an equitable award because O.C.G.A. §§ 44-6-140 and44-6-141 granted the court the authority to adjust the accounts and claims of the parties as required by the circumstances and, more specifically, authorized the trial court to consider all of the circumstances, including any circumstances that occurred after the making of the contract. Bagwell v. Trammel, 297 Ga. 873, 778 S.E.2d 173 (2015).

Am. Jur. 2d.

- 27A Am. Jur. 2d, Equity, § 4.

C.J.S.

- 68 C.J.S., Partition, § 72 et seq.

ALR.

- Right of judgment creditor of cotenant to maintain partition, 25 A.L.R. 105.

Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718.

Right of executor or administrator to bring proceedings for partition of real property, 57 A.L.R. 573.

Partition of partnership real property, 77 A.L.R. 300.

Acquisition by one party pending partition suit of all outstanding joint or common interests as affecting power of court to determine questions of controverted title, remove clouds on title, etc., 162 A.L.R. 227.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Necessary or proper parties to suit or proceeding to establish private boundary line, 73 A.L.R.3d 948.

Homestead right of cotenant as affecting partition, 83 A.L.R.6th 605.