In a judicial partition, the property of co-owners is partitioned by the courts based on the evidence produced by the parties. A partition can be in kind or in money.
Courts have the authority to determine the legal owners of a property. Courts can convert an equitable estate into a legal estate[i]. However, the main function of courts in a partition proceeding is to separate the unity of possession of property. In cases where each tenant has an undivided half interest, the court can only assign the half interest in the property to each tenant. The court cannot grant a greater share to either party[ii]. A party who is awarded a landlocked parcel can be granted an easement by prescription[iii].
In most of the states in the U.S., two judgments are provided in a partition action. The first decree determines the share or interest of each of the joint owners or claimants. It also determines all questions of law or equity affecting the title. The first decree appoints commissioners and gives them directions that are necessary and appropriate. The second decree in a partition action approves the report of the commissioners. The second decree allocates to the respective parties their separate shares or tracts, or confirms the sale of the property[iv].
The first decree that declares the rights of the parties, orders a partition or sale, and appoints commissioners is an interlocutory decree[v]. In some states, a decree that orders a sale of property is not considered final judgment sufficient to support an appeal. In such cases, the courts should confirm or reject the sale to make the judgment final. However, in other states, the judgment ordering the sale of a property is appealable. It is because the court considers that the rights and interests of the parties in the action are determined by the judgment.
It is considered as a mutually binding contract to settle the partition action, when co-owners with the right of survivorship stipulate for the entry of a judgment of partition. The action would survive the death of one of the joint owners before actual entry of judgment, even though the action would abate upon the death of one joint owner.
[i] Kohl v. Montgomery, 379 Ill. 579 (Ill. 1942).
[ii] Keith v. El-Kareh, 729 P.2d 377 (Colo. Ct. App. 1986).
[iii] Mississippi State Highway Com. v. Morgan, 160 So. 2d 77 (Miss. 1964).
[iv] Hershey v. Duncan, 2004 Tex. App. LEXIS 9784 (Tex. App. Corpus Christi Nov. 4, 2004).
[v] Padilla v. Ulibarri, 2010 N.M. App. Unpub. LEXIS 137 (N.M. Ct. App. Mar. 19, 2010).