Partition is the division of real estate made between co-tenants, tenants in common, or joint tenants. Parties claiming partition must have a legal or equitable title, and actual or constructive possession to the property. All necessary and proper parties must be brought before the court for effective settlement of an issue. A proper party is a person interested in the subject matter of a suit. A necessary party is an indispensable party, without whom court cannot render a proper decision. Absence of necessary parties renders the decree void. All parties interested in the property must be brought before the court or notice must be legally served to all parties.
In a suit for the partition of land the rights and interests of necessary and indispensable parties can not be adjudicated when they are not properly brought before a court. It is error for a court to decree partition when an indispensable party is not a party to the suit and s/he is not bound by the decree[i]. In a suit to establish title and procure a partition or sale for division all persons interested in the title who will be directly affected by the decree are indispensable parties[ii].
An appellate court must take step to protect the absent parties who had no opportunity to protect their interests in trial court[iii].
Every person other than plaintiff, interested in the property must be made a defendant in the partition suit. In some jurisdictions, indispensable cotenants not uniting in the suit are made defendants to the partition suit[iv].
When a cotenant transfers his/her interest, the purchaser or grantee is a necessary party to a partition suit. A decree passed in the absence of a purchaser or grantee leads improper result. Generally, mortgages or other liens preventing an undivided interest of a co-tenant will, in the case of a partition sale, attach to the co-tenant’s share of the proceeds of such sale. Purchaser at the partition sale takes the property discharged of the lien[v].
In a partition suit all parties interested in the leasehold must be united. However, in an action among lessees, a lessor is not a necessary party[vi].
A spouse holding tenancy in common interest with his/ her spouse as tenants by the entirety, is a necessary party to a partition action by the other spouse against other tenants in common. A court must dismiss a partition suit filed without joining an interested spouse[vii]. Additionally, a minor having common interest with others in joint property is necessary party in a partition proceeding. The minor or guardian of minor must be made a party to a partition suit[viii].
However, a reversionary without right of possession is not a necessary party to a partition suit. A remaindermen merely interested in the proceeds of share of land is not necessary party to a partition suit. However, a contingent remainderman having interest in subject matter must be made a party to the partition suit[ix].
On death of the decedent, title to the land immediately vests in the heirs at law. Usually an administrator to the decedent’s estate is not a necessary party. However, when the partition is subject to settling the accounts by an administrator, the administrator is a necessary party.
Moreover, in a suit purely for partition of land, unless a sale and distribution of its proceeds are sought, a trustee and creditor in a deed of trust are not necessary parties[x].
[i] Camp Phosphate Co. v. Anderson, 48 Fla. 226, 247 (Fla. 1904).
[ii] Barney v. Balt. City, 73 U.S. 280, 287 (U.S. 1868).
[iii] Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (U.S. 1968).
[iv] Spears v. Spears, 2001 PA Super 61 (Pa. Super. Ct. 2001).
[v] Hoover v. Materi, 515 S.W.2d 406 (Tex. Civ. App. El Paso 1974).
[vi] Texas Oil & Gas Corp. v. Ostrom, 638 S.W.2d 231, 233 (Tex. App. Tyler 1982).
[vii] West v. First Agricultural Bank, 382 Mass. 534, 537 (Mass. 1981).
[viii] Tate v. Mott, 96 N.C. 19 (N.C. 1887).
[ix] Hayden v. McNamee, 392 Ill. 99, 112 (Ill. 1945).
[x] Waldron v. Harvey, 54 W. Va. 608 (W. Va. 1904) Waldron v. Harvey, 54 W. Va. 608 (W. Va. 1904).
