In the U.S., an action for partition is of statutory origin. Generally, partition suits are governed and regulated by state statutes.  However, courts usually adopt equitable proceedings in settling a partition action.  In a partition, statutory remedies coexist with equitable remedies. Partition proceedings are mainly conditioned and controlled by the broad principles governing equity.  Courts adopt equity principles in adjusting the rights of co-tenants and defining their interest in the common property.

“He who seeks equity must do equity”.  Equitable relief is granted upon condition that the equitable rights of a co-tenant are respected and safeguarded[i].  Moreover, a court granting equitable relief can grant other statutory reliefs.  However, some states refuse to provide equitable relief when the statute clearly provides a remedy.  A plaintiff in an action for equitable partition must show that there is a necessity for equitable relief or that circumstances make equitable relief more just and suitable[ii].

The jurisdiction of courts relating to title to real estate is granted or denied by constitution or statutes.  Most of the statutes give concurrent jurisdiction to courts to deal partition matters while dealing other real estate matters.  The partition and the sale of real estate of a decedent is clearly a matter relating to a decedent’s estate.  The jurisdiction to partition and sell real estate of a decedent is acquired by the county court at the time jurisdiction is acquired for all other matters relating to decedents’ estate[iii].

When the subject matter of partition is a property held in common with the U.S., a suit for partition can be brought against the U.S. in a federal district court.  “The district courts shall have original jurisdiction of any civil action commenced by any tenant in common or joint tenant for the partition of lands where the U. S. is one of the tenants in common or joint tenants”[iv].  In order to bring an action against the U.S., plaintiff’s tenancy must be clear and undisputed.

The U. S. cannot be sued without its consent.  The federal district courts have no jurisdiction over claims against the U. S. in the absence of a waiver of sovereign immunity by specific congressional consent.  Waiver of sovereign immunity must be strictly construed.  Exceptions cannot be implied.  “The scope of the statute waiving sovereign immunity as to partition suits was confined to those cases in which the plaintiff’s title is undisputed”[v].

An action for partition falls within the quasi in rem category.  The court where the property is situated has jurisdiction to dispose of the property[vi].  In rem proceedings are to determine rights in specific property against the entire world and are equally binding upon everyone.  However, in a partition, the court decides status, ownership, or liability of the particular property.  The decision operates between the parties to the proceedings.

Generally, a court in one state cannot exercise jurisdiction over a property situated in another state’s jurisdiction[vii].  However, in cases of fraud, trust, or contract, jurisdiction of a court is sustainable wherever the defendant can be found, although lands not within the jurisdiction of the court are not affected by its decree[viii].  Although the disputed property is not situated within it’s jurisdiction, a state can exercise jurisdiction over that subject, provided the court has supervision over a trust.

Moreover, most of the jurisdictions empower family courts to entertain partition proceedings in connection with divorce proceedings.  For example: “the court is empowered to hear and determine all motions for allowance, alimony and other matters arising out of petitions and motions relative to real and personal property in aid thereof, including, but not limited to, partitions and such other equitable matters arising out of the family relationship, wherein jurisdiction is acquired by the court by the filing of petitions for divorce”[ix]. However, family courts will not exercise jurisdiction when the exercise of partition proceedings leads to a conflict with conferred jurisdiction.

Ordinarily, heirs or devisees desiring partition of a decedent’s property will resolve the issue by agreement without resort to the courts.  When a court’s determination is necessary, the court with jurisdiction to administer the estate has jurisdiction to partition the property.  A probate court can exercise jurisdiction to distribute the assets of a decedent’s estate by determining those persons who are entitled to the assets.  An independent partition proceeding will not oust a probate court’s jurisdiction.

A proceeding for partition or for a sale for division of proceeds can be maintained in a probate court or a circuit court of the county in which the land or some part of the land is situated[x].  When the property to be partitioned is situated in different jurisdictions, suit for partition can be instituted in the state where any of the property is situated.  Some jurisdictions allow a suit to be instituted in the place where the larger extent of the property is situated.  In the case of a wrongful institution of suit, parties are permitted to transfer the suit to a proper jurisdiction.

[i] Elbert, Ltd. v. Federated Income Properties, 120 Cal. App. 2d 194, 200 (Cal. App. 1953).

[ii] Burnham v. Lynn, 235 Ga. 207 (Ga. 1975).

[iii] In re Estate of Failla v. Failla, 278 Neb. 770, 774 (Neb. 2009).

[iv] 28 USCS § 1347.

[v] Stubbs v. United States, 620 F.2d 775, 782 (10th Cir. Utah 1980).

[vi] Shaffer v. Heitner, 433 U.S. 186, 207 (U.S. 1977).

[vii] Schick v. Whitcomb, 68 Neb. 784 (Neb. 1903).

[viii] Thompson v. Nesheim, 280 Minn. 407, 420 (Minn. 1968).

[ix] R.I. Gen. Laws § 8-10-3.

[x] Finch v. Smith, 146 Ala. 644, 653 (Ala. 1906).