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A partition is an act of dividing a concurrent estate into separate portions each representing the proportionate interests of the tenants.  A partition can be conducted voluntarily or judicially.  a voluntary partition is the division of property into appropriate shares to all co-owners.  A judicial partition is dividing a property under court procedures.

A partition action is generally considered an equitable action.  Therefore, a partition action has no right to trial by jury[i].  Statutes that deny the right to trial by jury in a partition action are considered constitutionally valid[ii].

When a common law action is instituted for partition, a trial by jury is available to consider issues regarding law or equity[iii].  When there is an issue relating to title and possession of the property in controversy, it can be tried by a jury.  The parties have to request trial by jury in such cases.  When a question of law is attached to a partition claim, a right to jury trial can be allowed.

In some states, a court can decide a partition case in chambers without a jury.  In such cases, defendants should be given the opportunity to raise objections.  If the title of the property is in question and the objections are filed, the defendants will have the right to trial by jury[iv].

Evidence that are not admissible in a jury trial can be allowed in a hearing on partition between co-owners.  Evidence will be taken when property is to be partitioned in kind.  Courts look at the area or property involved in such cases to avoid making a decision that prejudices any of the parties[v].

The property description should be accurate in partition cases.  Generally, courts admit parol or extrinsic evidence to describe the property.  However, courts consider parol and extrinsic evidence only when property is defectively or ambiguously described[vi].  Documents such as wills and deeds are forms evidence preferred by courts to prove title.

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 the evidence produced[vii].

There are certain rebuttable presumptions in partition actions.  It is a rebuttable presumption that cotenants own equal shares in the property that is sought to be partitioned[viii].  When there is no proof about the proportion of consideration paid by two grantees, a court can presume that both the grantees paid an equal amount and have an equal interest in the property.

The general rules in civil actions regarding burden of proof is applicable in partition actions also.  Generally, a partition action is considered an adversarial action.  The party who makes affirmative allegations in a partition action has the burden to prove it[ix].

Normally, the plaintiff in a partition action should prove matters such as: a) s/he is a joint owner entitled to bring a partition action, b) the title asserted, c) right to possession, d) interests of all interested parties, and e) a prior voluntary partition that concededly occurred is invalid.

A defendant to a partition suit should prove matters such as: a) facts showing that it would be inequitable to grant the petition, b) a prior voluntary valid partition of the property by agreement among the parties, and c) to whom the lots were assigned in the prior partition.

[i] First Nat’l Bank & Trust Co. v. Brakken, 468 N.W.2d 633 (N.D. 1991).

[ii] Calhoun v. Cracknell, 202 Mich. 430 (Mich. 1918).

[iii] State v. $ 17,515.00 in Cash Money, 2003 ND 168 (N.D. 2003).

[iv] Goodman v. Georgia R. B. & T. Co., 221 Ga. 396 (Ga. 1965).

[v] Crews v. Crews, 432 So. 2d 377 (La.App. 1 Cir. 1983).

[vi] Ross & Sensibaugh v. McLelland, 262 S.W.2d 205 (Tex. Civ. App. 1953).

[vii] Taggares v. Superior Court, 62 Cal. App. 4th 94 (Cal. App. 4th Dist. 1998).

[viii] Hicks v. Hicks, 348 So. 2d 1368 (Ala. 1977).

[ix] Levy v. Bonfouca Hunting Club, 136 So. 2d 567 (La.App. 1 Cir. 1961).

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