A judicial partition is the division of property based on evidence submitted before the court. In partition cases, a court can appoint a referee if the court feels that a referee will be helpful to assist the court in determining matters that cannot be determined upon evidence produced[i].
In partition actions, statutes provide for the appointment of a commission to examine the property, make a preliminary partition of it or determine that the land is not susceptible to partition, and to report back to the court. Generally, such functions can also be conducted by referees, masters, or a notary.
Commissioners or masters are appointed to make the partition to protect the litigants. The court cannot avoid that step without the express or implied consent of the parties[ii]. In some jurisdictions, the appointment of commissioners is mandatory[iii]. In other states, the trial court has the discretion to order a referee to determine whether a partition can be made without great prejudice to the owners. The trial court can also determine without appointing commissioners that a partition in kind is not practicable or is practicable. When it is mandatory according to statutes that trial courts should determine whether property should be partitioned in kind, the appointment of commissioners to make the partition is required after the court has determined that partition in kind is feasible.
However, a partition cannot be completely delegated to a commissioner because it is a judicial function[iv]. When a court determines that a partition is authorized and appoints commissioners, it is the commissioners’ duty to make a partition of the property and set off the parties’ respective shares. Courts make orders directing the commissioners to personally enter the premises and the court also directs a co-owner to permit such entry within a specified time. The commissioners or referees can employ a surveyor[v]. However, it is a discretionary power. The referees can also make a recommendation concerning improvements made on the property. The commissioners have the power to decide that the several parcels should be allotted to the tenants by the drawing of lots. In some states, allotment by chance is mandatory. Courts can also appoint officials to create an inventory of all the properties that are to be partitioned. A commissioner can also appraise the value of the property.
The court gives commissioners instructions to make a division among the joint owners according to quality, quantity, and value of the land, taking into account each co-owner’s respective proportion of ownership. However, courts cannot direct the commissioners to partition the land so as to give to one of the parties a designated portion of the land.
A commissioner’s report notice should be provided to parties so that if the parties have some objection, they can object before the court confirms the report[vi]. When a commissioner’s report copy is mailed, it becomes sufficient notice. When a partition is made and the report is delivered to the court, the commissioner’s functions are fully performed. When there is more than one commissioner, the report of the commissioners need not be unanimous. The action of a majority of the commissioners is sufficient and binding upon the parties, and the report need not be signed by all the commissioners[vii]. Commissioners who do not confer with the decision of the majority can provide a minority report. Partitions can be set aside only on grounds of fraud, collusion, or mistake.
Questions raised in a commissioner’s report should be fairly and equitably determined by the court before confirming the report. Courts can ask for evidence on the questions raised in the report and the decision should be based on the evidence in the record. The burden of proof is upon the party who is against the report of the commissioners. If there is no objection raised against the report of the commissioner, the court will accept the report. Commissioners are not under the obligation to appear and testify at the hearing regarding objections to their report. However, if requested by the parties, the commissioner can appear and testify in court. In cases where the court agrees with the findings of the referees or commissioners, it can affirm their report without the need to make its own findings of fact. However, a trial court will not reject the recommendation of the commissioners without first filing findings of fact and conclusions of law expressing the reasons for not following such a recommendation.
A commissioner’s report can be set aside on the ground that there were errors or irregularities in their proceedings that would seriously affect the rights of the parties[viii]. It can also be set aside where the objecting parties meet their burden of proving that a partition made according to the report would be unequal and unjust.
[i] Taggares v. Superior Court, 62 Cal. App. 4th 94 (Cal. App. 4th Dist. 1998).
[ii] Moore v. Willey, 77 Ark. 317 (Ark. 1905).
[iii] Benson v. Fox, 589 S.W.2d 823 (Tex. Civ. App. Tyler 1979).
[iv] McGill v. Roush, 87 Ohio App. 3d 66 (Ohio Ct. App., Champaign County 1993).
[v] Yturria v. Kimbro, 921 S.W.2d 338 (Tex. App. Corpus Christi 1996).
[vi] Franks v. Howard, 1995 Tex. App. LEXIS 3925 (Tex. App. Dallas Jan. 26, 1995).
[vii] Townsend v. Hazard, 9 R.I. 436 (R.I. 1870).
[viii] Pollard v. American Freehold Land Mortg. Co., 139 Ala. 183 (Ala. 1903).