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Call Now: 904-383-7448The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days' notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. They shall return the writ, with their actings and doings thereon and under their hands and seals, to the superior court within three months after its issuance, which return shall be filed and kept by the clerk until the next term of the court.
(Laws 1767, Cobb's 1851 Digest, p. 582; Laws 1827, Cobb's 1851 Digest, p. 583; Code 1863, § 3900; Code 1868, § 3924; Code 1873, § 4000; Code 1882, § 4000; Civil Code 1895, § 4790; Civil Code 1910, § 5362; Code 1933, § 85-1508.)
- Employment of a surveyor contemplates payment, and the court, in the exercise of the court's powers in these equitable proceedings, would be authorized to provide for such. Liddell v. Johnson, 214 Ga. 861, 108 S.E.2d 878 (1959).
Notice required by this statute need not be in writing. Ralph v. Ward, 109 Ga. 363, 34 S.E. 610 (1899) (see O.C.G.A. § 44-6-164).
No provision is made for the return or entry of such notice. English v. Poole, 31 Ga. App. 581, 121 S.E. 589 (1924).
Provision of O.C.G.A. § 44-6-164 requiring partitioners to make their return within three months after issuance of writ is directory rather than mandatory, and a delay will not require dismissal of the return unless it was caused by the applicant or it appears that a substantial right of the respondents has been prejudiced. Williams v. Williams, 159 Ga. App. 351, 283 S.E.2d 344 (1981).
- When the return of the partitioners appointed to partition land had been made and filed, and an objection was made thereto by the defendant on the ground that the partitioners had not taken the oath required of the partitioners by this statute, and the partitioners were ordered by the court to make and file a new return after having taken the oath required, and when the petitioners made and filed a new return, the latter return was not void and illegal upon the ground that the partitioners had no authority in law to make the return, or were disqualified, and the proceedings were not subject to dismissal upon the ground that, with the making of the petitioners first return, the writ of partition became functus officio. McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932).
- In a statutory partitioning of land, the trial court did not err in granting the partitioners authority to hire a timber cruise to assess the value of timber. Hart v. Hart, 245 Ga. App. 734, 538 S.E.2d 814 (2000).
- Although O.C.G.A. § 44-6-164 provided that a division of property should be in proportion to the shares claimed, the trial court's division of the two tracts of land involved in a partition action to different groups of siblings was not precluded as the record showed that the aggrieved siblings agreed to that grouping at the beginning of the partition proceeding; thus, the siblings could not be heard to complain about a grouping to which the siblings agreed. Williams v. Conerly, 276 Ga. 651, 582 S.E.2d 1 (2003).
Cited in Leggitt v. Allen, 85 Ga. App. 280, 69 S.E.2d 106 (1952); Clay v. Clay, 269 Ga. 902, 506 S.E.2d 866 (1998).
- 59A Am. Jur. 2d, Partition, §§ 58, 62, 63.
- 68 C.J.S., Partition, § 126 et seq.
- Judicial partition of land by lot or chance, 32 A.L.R.4th 909.
No results found for Georgia Code 44-6-164.