O.C.G.A. § 44-6-141 (2019)

Annotations

JUDICIAL DECISIONS Decree should conform to the verdict. Groover v. King, 55 Ga. 243 (1875). When parties collaterally interested are brought in as defendants, decree should settle the parties’ rights. Gaines v. Little, 56 Ga. 649 (1876). Claim against a cotenant for profits will take precedence over a mortgage made by the cotenant. Hines v. Munnerlyn, 57 Ga. 32 (1876). 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). Attorney fees may be awarded. - In an equitable proceeding for partition and other relief, the court does not err in awarding fees to the attorneys for the plaintiffs to be paid from the common fund derived from the sale of the joint property. Taylor v. Sharpe, 221 Ga. 282, 144 S.E.2d 390 (1965). Court empowered to mold decree to protect absent interested person presumed dead. - When an absentee minor has been missing for several years, the next of kin claiming as heirs at law of the absentee may, by an action in equity instituted against the guardian after a presumption of death arises, compel the administration and distribution of the estate. In such a case, the court of equity has full power to mold the court’s decree as to protect the absentee or any person claiming under the absentee, should it afterwards appear that the absentee was not in fact dead, or that the absentee did not die until after the absentee attained majority. Payne v. Home Sav. Bank, 193 Ga. 406, 18 S.E.2d 770 (1942).

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 brought in a court of competent jurisdiction and purchased by private individuals, and since the railroad of the company was dismantled and the company’s 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). Cited in Greer v. Henderson, 37 Ga. 1 (1867); Brown v. Mooney, 108 Ga. 331, 33 S.E. 942 (1899); Smith v. Smith, 133 Ga. 170, 65 S.E. 414 (1909); Clements v. Seaboard Air-Line Ry., 158 Ga. 764, 124 S.E. 516 (1924); Rosenberg v. Phelps, 159 Ga. 607, 126 S.E. 788 (1925); Joel v. Joel, 201 Ga. 520, 40 S.E.2d 541 (1946); Bell v. Cone, 208 Ga. 467, 67 S.E.2d 558 (1951); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); McClain v. McClain, 241 Ga. 162, 243 S.E.2d 879 (1978); Brannon v. Simpson, 244 Ga. 58, 257 S.E.2d 541 (1979).

RESEARCH REFERENCES Am. Jur. 2d. - 27A Am. Jur. 2d, Equity, § 1. C.J.S. - 68 C.J.S., Partition, § 72. ALR. - Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 ALR 352.

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 ALR 755. 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 ALR 227.

Allowance and apportionment of counsel fee in partition action or suit, 94 ALR2d 575.