Rhodes v. Lane , 202 Ga. 608 ( 1947 )

1. It is the general rule that a party will not be decreed partition if it would be contrary to his own agreement.

2. The petition, seeking an equitable partition of land with a building thereon, but showing by a copy of contract attached to the petition that, in the event either tenant in common "wishes to sell or otherwise dispose of his half interest in the lot and building," the other tenant in common "shall have the first option of purchasing" such interest at a price not to exceed the original investment of the seller, and failing to allege that the provision of the contract had been complied with by affording the defendant an opportunity to purchase the petitioner's interest under the terms of the contract, did not set forth a cause of action for partition, and the court erred in overruling the defendant's general demurrer.

No. 15912. SEPTEMBER 5, 1947. L. L. Lane filed against R. Franklin Rhodes a petition in equity for the partitioning of described land with a building thereon, alleging that the property was jointly owned by him and Rhodes and could not be divided by metes and bounds. The petition sought to have the property sold and the proceeds equally divided between the two parties. It was alleged that the petitioner did not desire to sell his interest, but that it was necessary that the property be partitioned by sale because the petitioner and Rhodes disagreed about certain business operations upon the premises. A certain contract, signed by the two parties, was attached to the petition. The clause in the contract here pertinent reads as follows: "In the event either partner wishes to sell or otherwise dispose of his half interest in the lot and building, the other partner shall have first option of purchasing the selling partner's interest at a price not to exceed the original investment of the selling partner." A general demurrer and answer were filed by the defendant, and the case was submitted to the trial judge upon the pleadings, to decide the case without the aid of a jury. The general demurrer was overruled, and a division of the property was ordered by public sale under the petition for partition. The exception here is to this judgment and is based solely upon the contention that the above-quoted provision of the contract between the parties prevented a partition of the property by sale, or otherwise, until the petitioner had first given the defendant the opportunity to buy the petitioner's one-half interest in accordance with the terms of the contract, and that, since the petition failed to allege that this had been done, no cause of action was alleged. The language in the contract under consideration is clear and unambiguous. Under it the petitioner agreed that he would not sell or otherwise dispose of his half interest in the property without first giving the defendant the opportunity to purchase that interest at a price not in excess of the original investment of the petitioner. The language is certainly broad enough to include a disposition of the property by partition proceedings, but it does not bar partition in all events. If, after an opportunity to purchase the interest of the petitioner under the terms of the contract, the defendant Rhodes should refuse to avail himself of this privilege, the right to partition the property would then arise. It is generally held that a party will not be decreed partition if it would be contrary to his own agreement. Freeman, Cotenancy and Partition, 2nd ed., § 442; 2 Tiffany, Real Property, 3rd ed., § 474; 40 Am. Jur. 7, § 5; Annotations, 132 A.L.R. 672. Since the petition fails to allege that the defendant was given an opportunity to purchase the one-half interest of the petitioner in accordance with the written contract, no right to a partition of the property was shown, and the trial court erred in overruling the general demurrer.

Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.