Chapter 13

PARTITION

 I. (§13.1) Introduction

 II. (§13.2) Property Subject to Partition

 III. (§13.3) Voluntary Partition

A. (§13.4) Partition by Deed
B. (§13.5) Partition by Arbitration
C. (§13.6) Parol Partition

 IV. Partition by Judicial Action

A. (§13.7) Statutes and Rules
B. (§13.8) Jurisdiction
C. (§13.9) Venue
D. (§13.10) Pleadings
E. (§13.11) Parties
F. (§13.12) Trial
1. (§13.13) Right to Partition
2. (§13.14) Interests of Parties
3. (§13.15) Division or Sale of Property
G. (§13.16) Interlocutory Judgment
H. Division of Property
1. (§13.17) Commissioners
2. (§13.18) Confirmation of Report and Division of Property

 
Reprinted with permission from Missouri Real Estate Practice, © The Missouri Bar (2000). All rights reserved.
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  *Charles W. Riley received his B.A. from the Missouri Valley College and his LL.B., 1960, from Washington University. He practices with the firm of Riley & Dunlap in Fulton, Missouri.
**Thomas K. Riley received his B.A., 1993, from Westminster College and his J.D., 1997, from Washington and Lee University. He is an associate with the firm of Riley & Dunlap in Fulton, Missouri.
I. Sale of Property
1. (§13.19) Order of Sale
2. (§13.20) Publication of Notice
3. (§13.21) Manner of Sale
4. (§13.22) Confirmation of Sale and Distribution of Proceeds
5. (§13.23) Rights of Purchaser
J. Costs of Action
1. (§13.24) Costs
2. (§13.25) Attorney Fees
K. (§13.26) Appeal
L. (§13.27) Partition of Personal Property
M. (§13.28) Sale of Property Subject to Estate for Life or Years

 I. (§13.1) Introduction

Partition is a change in the ownership of property whereby each cotenant of the whole property becomes the sole owner of a portion of that property. Snyder v. Elliott, 71 S.W. 826 (Mo. 1903). In other words, the partition of property transforms concurrent estates into two or more estates in severalty. Stockwell v. Stockwell, 172 S.W. 23, 2526 (Mo. 1914). If the cotenants set apart their interests without resort to judicial action, they effect a voluntary partition. See §§13.313.6, infra. If the cotenants cannot agree to partition the property voluntarily, any cotenant can compel the property's partition or sale by judicial proceeding without regard to the wishes of any other cotenant. See §§13.713.26, infra.

 II. (§13.2) Property Subject to Partition

Historically, partition referred only to the division of land. Gudgell v. Mead, 8 Mo. 53, 5455 (1843). Today, however, both real and personal property can be partitioned. Rules 96.01 and 96.32.

The primary requirement for partition is that the property be subject to concurrent estates, i.e., subject to an estate held by cotenants. See Gray v. Clements, 227 S.W. 111, 112 (Mo. 1920). Tenants in common, joint tenants, and, presumably, tenants by the entirety can voluntarily partition their property. See Cave v. Wells, 5 S.W.2d 636, 64041 (Mo. 1928) (discussing requirement of cotenancy for voluntary partition); see also Ronollo v. Jacobs, 775 S.W.2d 121, 123 (Mo. banc 1989) (stating requirement of joint and mutual action for severance of tenancy by entirety). Tenants in common and joint tenants can also force a judicial partition. Rule 96.01. Tenancies by the entirety, however, are not subject to a judicial partition. Id.; see Ronollo v. Jacobs, 775 S.W.2d at 123.
Missouri courts have recognized that both legal and equitable estates can be partitioned. Martin v. Martin, 157 S.W. 575, 577 (Mo. 1913). The partitioned estate can be one in fee, for life, or for years. Section 528.030, RSMo 1994; Rule 96.01. Of course, cotenants of a fee simple can partition their property. See, e.g., Forney v. Forney, 926 S.W.2d 889 (Mo. App. E.D. 1996). Cotenants can also partition estates for years or life estates even if they do not hold any interest in the remainder. See Gray, 227 S.W. at 112. In addition, cotenants of a remainder can partition the remainder subject to the life estate. Flournoy v. Kirkman, 192 S.W. 462, 463 (Mo. 1917). Because partition separates concurrent interests, however, no partition can be had severing successive estates, e.g., one life estate from a remainder. Gray, 227 S.W. at 112. Owners of these estates must resort to the statute specifically authorizing the sale of this property unless an agreement can be reached severing their interests. Noyes v. Stewart, 235 S.W.2d 333, 33438 (Mo. banc 1950) (citing § 528.010, now RSMo Supp. 1999); see §13.28 infra.

 III. (§13.3) Voluntary Partition

Voluntary partition occurs when all the cotenants divide their property without resort to legal action. As a result, each former cotenant of the partitioned property becomes the sole owner of a portion of the property. Snyder v. Elliott, 71 S.W. 826 (Mo. 1903). If an equal division of the property cannot be made, monetary payments, called "owelty," can be made to certain cotenants receiving less valuable portions of the property. Of course, if the cotenants cannot agree on how to divide the property, they may sell it and divide the proceeds.

Any cotenant with the right to effect a judicial partition has the right to partition the property voluntarily as well. See Petrie v. Reynolds, 219 S.W. 934, 938 (Mo. 1920). As with judicial partitions, voluntary partitions can be effected not only by cotenants in fee, but also by cotenants for life or years, Acord v. Beaty, 148 S.W. 901, 90203 (Mo. 1912), or by cotenants of the remainder. Cf. Cave v. Wells, 5 S.W.2d 636, 64041 (Mo. 1928) (discussing requirements for involuntary and voluntary partitions). In addition, tenants by the entirety, who are prohibited from judicially partitioning property, should be able to set apart their interests voluntarily if they both agree to do so. Ronollo v. Jacobs, 775 S.W.2d 121, 123 (Mo. banc 1989). Any voluntary partition requires that all the cotenants agree to the partition. Elliott v. Delaney, 116 S.W. 494, 498 (Mo. 1909).

A. (§13.4) Partition by Deed

The normal method for accomplishing a voluntary partition is the mutual exchange of deeds conveying to each cotenant all other interests in a particular portion of the property. Missouri courts have consistently recognized the ability of cotenants to partition their property through mutual conveyance. Acord v. Beaty, 148 S.W. 901, 902 (Mo. 1912).

Many older cases, however, have also imposed a peculiar limitation on the effectiveness of these deeds. These cases consistently held that the exchange of partition deeds between cotenants sets off each cotenant's interest but does not actually convey any title. Adams v. Cary, 226 S.W. 833, 83435 (Mo. 1920). The reasoning underlying these holdings is that, in partitioning property, no cotenant conveys any portion of his or her title to another (each owning no more or less after the partition than before), but each cotenant only confines his or her interest within certain boundaries. Snyder v. Elliott, 71 S.W. 826 (Mo. 1903). Based on this reasoning, these cases held that, if a partition deed purports to convey cotenant As interest in part of the property to cotenant B and cotenant B's spouse, the purported conveyance is ineffective to vest title in the spouse. Id.

B. (§13.5) Partition by Arbitration

Partition by arbitration may be given effect by the courts in certain circumstances. The parties' agreement to abide by the decision of one or more arbitrators can be enforced through an action for specific performance. Rose v. Moore, 377 S.W.2d 372, 37879 (Mo. 1964). Chapter 435, RSMo, which is Missouri's codification of the Uniform Arbitration Act, 7 (Part I) U.L.A. 6 (1997), should be followed in order to assure the validity of the agreement and the binding effect of the arbitration decision.

C. (§13.6) Parol Partition

Parol partition has been defined as a "division, and in no legal sense a conveyance of land, the result of which is to vest the equitable title of the respective shares in the tenants in common to whom allotments are made, the legal title remaining as before." Wilson v. Beck, 286 S.W. 315, 318 (Tex. Civ. App. 1926). Parol partitions arise when the parties have agreed to partition the property but have not done so through proper conveyances. See, e.g., Clark v. Clark, 18 S.W.2d 77 (Mo. 1929).

Parol partitions are valid in Missouri under certain conditions. An agreement between cotenants followed by possession, use, or alienation of each tenant's part of the property may be held binding on all cotenants, Edwards v. Latimer, 82 S.W. 109, 111 (Mo. 1904), depending on the length of time each cotenant has acquiesced in the partition. Petrie v. Reynolds, 219 S.W. 934, 938 (Mo. 1920). A valid parol partition may be confirmed by a decree vesting legal title of the severalty in each cotenant. Clark, 18 S.W.2d at 81. This partition may also ripen into a legal estate by adverse possession. Nave v. Smith, 8 S.W. 796 (Mo. 1888). Establishment of a parol partition requires strict proof. Elliott v. Delaney, 116 S.W. 494, 498 (Mo. 1909). Cotenants are well advised to use properly prepared deeds to effect a voluntary partition rather than relying on parol agreements.

 IV. Partition by Judicial Action

A. (§13.7) Statutes and Rules

Chapter 528, RSMo, and Rule 96 set forth the procedures and standards for judicial partition. The provisions of Chapter 528 trace their origin to Missouri's earliest statutes. Rule 96, by contrast, was adopted in 1980 and became effective the following year. Rule 96 largely tracks the language in Chapter 528. In case of conflict between the two, Rule 96 supersedes the statutes. Rule 41.02.

Both Chapter 528 and Rule 96 allow certain parties to bring suit for the partition of real or personal property. The proceedings authorized by the statutes and Rules provide for the partition of property in kind if it can be accomplished without great prejudice to the parties; otherwise, the sale of the property and division of its proceeds are authorized. See §§13.813.27, infra. In addition, § 528.010, RSMo Supp. 1999, and Rule 96.03 authorize a tenant with an estate for life or for years to sue the remaindermen for the sale of the property. See §13.28, infra.

B. (§13.8) Jurisdiction

Circuit courts have jurisdiction in actions for the partition of real estate. Section 528.040, RSMo 1994; Foeste v. Keesee, 138 S.W.2d 700, 701 (Mo. App. E.D. 1940).

C. (§13.9) Venue

The question of venue is not addressed by Rule 96. Section 528.040, RSMo 1994, provides that the "petition shall be filed in the circuit court of the county in which" the land lies. If the land lies in more than one county, the petition shall be filed in the county in which a portion of the land is situated and the majority of parties reside. Id. If there is no such county, the petition shall be filed in the county containing an equal or greater portion of the land. Id.

D. (§13.10) Pleadings

The judicial partition is instituted by filing a petition. The petition must set forth the names and interests of all the parties to the action. Rule 96.05. The petition shall state if any party or interest in the property is contingent, uncertain, unknown, or dependent on executory devise. Id. Rule 96.05 requires that the petition contain the "legal description" of the property. Section 528.050, RSMo 1994, requires the petition to "particularly describe" the premises. The description must be sufficiently definite so that the sheriff can locate the property from the description. Mann v. Mann, 193 S.W.2d 492, 494 (Mo. 1946). The petition normally will request a determination of the interests and rights of the parties"if in doubt"and request a sale of the land if it is not susceptible to being partitioned in kind. Other pleadings follow the rules generally applicable to civil actions. Section 528.090, RSMo 1994.

E. (§13.11) Parties

Rule 96.01 provides that "[o]wners of interests in land in joint tenancy or tenancy in common, including estates in fee, for life, or for years, may bring an action for partition . . . ." Cotenants may bring this action whether the cotenancy is a present possessory estate or a future interest. Gray v. Clements, 227 S.W. 111, 112 (Mo. 1920). The estates held in cotenancy may be legal or equitable in nature. Martin v. Martin, 157 S.W. 575, 577 (Mo. 1913). Tenants by the entirety are not authorized to sue in partition. Rule 96.01.

A justifiable interest in the property is necessary to maintain a partition suit. If no interest in the property has been established or if the interest has been terminated, partition will not lie. In Trenholm v. Trenholm, 701 S.W.2d 209 (Mo. App. E.D. 1985), the court of appeals held that children could not bring a partition action when a divorce decree had awarded possession of the subject property to the husband and established that, upon the husband's decision to sell, the net profits were to be divided equally between the husband, the wife, and the children. Id. at 212. The children's interest in the property was insufficient to support an action in partition. Id.

The conservator of a protected person has the authority to bring a partition action under § 442.035, RSMo Supp. 1999, and § 528.100, RSMo 1994. Missouri cases have held that a personal representative of a decedent's estate, however, does not have the authority to maintain an action for the partition of realty. Crigler v. Frame, 632 S.W.2d 94, 96 (Mo. App. S.D. 1982). The heirs of a decedent may bring a partition action before the final settlement of the decedent's estate, Foeste v. Keesee, 138 S.W.2d 700, 70102 (Mo. App. E.D. 1940), but the decedent's will may limit their right to do so. See §13.13, infra.

Rule 96.06 provides that every person having an interest, whether in possession or not, must be made a party to the action. Rule 96.04 states that all parties who are vested, or might become vested, with an estate in the property shall be made parties plaintiff or defendant. Rule 96.04 also provides for the "representation of persons not in being by the person or persons of the same class . . . or related in estate" or by appointed counsel. The holder of a deed of trust, however, has been held not to be an indispensable party; the holder's interest is protected because the property can only be sold subject to the deed of trust. Cook v. Cook, 759 S.W.2d 891, 893 (Mo. App. E.D. 1988). It is the duty of the plaintiff's attorney to identify all parties with an interest in the land. Billinger v. Jost, 510 S.W.2d 57, 58 (Mo. App. E.D. 1974).

F. (§13.12) Trial

A trial will be held to determine the issues the court must resolve in ordering the partition or sale of the property. The rules regarding the conduct of civil trials apply to partition actions. Section 528.090, RSMo 1994. No Missouri cases have been found regarding the right of a party to demand a jury trial, but a jury trial should be available to determine issues of fact. See id. The issues facing the court include the plaintiff's right to have the property partitioned, the respective interests of the parties, and whether the property should be partitioned in kind or sold.

1. (§13.13) Right to Partition

Subject to the exceptions noted below, any cotenant entitled to bring a partition suit has an absolute right to have the property partitioned or sold. There is no requirement that the plaintiff prove that partition would benefit the cotenants; the right to partition is considered an inherent right of cotenancy. See Haeussler v. Missouri Iron Co., 19 S.W. 75 (Mo. 1892). "The right of partition is an absolute right, which yields to no consideration of hardship or inconvenience." Id.

Of course, only owners of the requisite interests in property have a right to partition. See §13.11, supra. The party bringing a partition action has the burden of proof to establish an ownership interest in the property. Schwarberg v. Grace, 526 S.W.2d 83, 85 (Mo. App. E.D. 1975). If the plaintiff cannot establish title to the property, a partition suit will not lie. Long v. Conrad, 42 S.W.2d 357, 362 (Mo. 1931). The defendant also may raise a defense establishing that the plaintiff has no interest in the property. Podschun v. Rice, 769 S.W.2d 441, 443 (Mo. App. W.D. 1989).

The mere lapse of time since the creation of the cotenancy will not prohibit a cotenant from suing for partition. Bass v. Rounds, 811 S.W.2d 775, 779 (Mo. App. E.D. 1991). A tenant does not need to be in actual possession of the property to maintain a partition suit. Id. at 778. A cotenant's possession is considered to be constructive possession of all cotenants unless the occupying cotenant has ousted the others. Id. An out-of-possession cotenant who has abandoned the property or is barred by adverse possession can no longer maintain a partition action. Id. at 77880.

Several doctrines do restrict the right to partition. The rights of a condominium owner to partition property are severely restricted. The common elements in a condominium cannot be partitioned. Section 448.070, RSMo 1994. Individual units can be partitioned between co-owners, but not in kind. Id.

Section 528.130, RSMo 1994, and Rule 96.07 provide that no partition or sale of land devised by any will shall be made contrary to the intention of the testator expressed in a will. An express prohibition against partition is not necessary to invoke this restriction; any provision indicating that partition would be contrary to the testator's intention will be given effect by the court. Section 528.130; Rule 96.07. For example, a direction by a testator that property be sold at a privately negotiated sale would limit the right of the heirs to bring a partition action under certain circumstances. Rawlings v. Rawlings, 58 S.W.2d 735, 738 (Mo. 1933).

Partition will also be denied for property held in trust if the partition would materially defeat the trustor's intention. Petty v. Griffith, 165 S.W.2d 412, 417 (Mo. 1942). The statutes authorizing partition of property do not supersede a trust's restriction on partition. See Springer v. Bradley, 188 S.W. 175, 178 (Mo. 1916). If, however, the trust contains nothing inconsistent with partition, the mere existence of a trust in an undivided interest in property does not present an obstacle. Petty, 165 S.W.2d at 417.

The law has long recognized the validity of certain contracts prohibiting partition. Mack v. Mack, 286 S.W.2d 385, 388 (Mo. App. E.D. 1956). An agreement prohibiting partition is enforceable unless the agreement amounts to an unreasonable restraint on the alienation of land. Stout v. Stout, 564 S.W.2d 89, 90 (Mo. App. E.D. 1978). An agreement will be held unreasonable if it restricts the right to partition into perpetuity. Id.

The right to partition is being increasingly restricted in dissolution actions in which one spouse is awarded the possession of premises (usually the family home) for some period of time (usually until the children reach majority). These dissolution decrees restrict the rights of the parents to partition for a certain period of time or until a particular occurrence, Cook v. Cook, 759 S.W.2d 891, 893 (Mo. App. E.D. 1988), even though the parties become tenants in common at the time of the dissolution. Id. A separation agreement that is approved by the dissolution decree and awards possession of the family residence to the husband until he decides to sell the property is not an unreasonable restraint of the wife's right to alienation, even though there is no time limitation, because there is an express contingency that will terminate the agreement. Trenholm v. Trenholm, 701 S.W.2d 209, 213 (Mo. App. E.D. 1985).

2. (§13.14) Interests of Parties

In order to divide the property or its proceeds, the court must determine the parties' respective interests in the property. Missouri courts now recognize a rebuttable presumption that tenants in common hold equal interests. Estate of Wilson, 740 S.W.2d 694, 697 (Mo. App. E.D. 1987); Community Bank of Chillicothe, Mo. v. Campbell, 870 S.W.2d 838, 841 (Mo. App. W.D. 1993). This presumption may be rebutted by a showing of unequal contributions toward the acquisition of the property made without donative intent, Montgomery v. Roberts, 714 S.W.2d 234, 236 (Mo. App. E.D. 1986), or of an intent by the cotenants to hold unequal interests. Cf. Community Bank of Chillicothe, Mo., 870 S.W.2d at 841. Joint tenants also can prove disproportionate interests in property in the same manner. Auffert v. Auffert, 829 S.W.2d 95, 9798 (Mo. App. W.D. 1992). A larger interest in the partitioned property will entitle a cotenant to a larger share of the property upon its partition or a larger share of the proceeds upon its sale.

When the property is acquired with a loan, courts occasionally struggle with defining the cotenants' contributions toward the property's acquisition. If parties have jointly executed a note for the purchase of the property, most cases have held that each tenant has contributed one-half of the loan toward the acquisition of the property regardless of who paid the down payment or who pays the note. See, e.g., Brooks v. Kunz, 637 S.W.2d 135, 13940 (Mo. App. E.D. 1982); Vickers v. Vickers, 762 S.W.2d 482, 483 (Mo. App. E.D. 1988); Bass v. Rounds, 811 S.W.2d 775, 782 (Mo. App. E.D. 1991). If one cotenant then pays the majority, or all, of the debt, that cotenant does not acquire a greater interest in the property, but only a right to contribution from the other cotenant. Brooks, 637 S.W.2d at 140. At least one court has refused to follow this analysis when it determined that the result would be inequitable under the facts before it. R__ S__ F__ v. P__ B__, 953 S.W.2d 190, 19495 (Mo. App. S.D. 1997).

In addition to determining the parties' respective ownership interests in the property, the courts may also "adjust the equities" between the parties arising after the acquisition of the property by granting one cotenant a right of contribution from the other cotenants. See Devoto v. Devoto, 39 S.W.2d 1083, 1084 (Mo. App. E.D. 1931). A right to contribution will entitle an owner to a greater share of the proceeds if the property is sold. Community Bank of Chillicothe, Mo., 870 S.W.2d at 842. If the property is divided, the tenant's right to contribution can be enforced by placing an equitable lien on the other cotenants' property. See Hahn v. Hahn, 297 S.W.2d 559, 567 (Mo. banc 1957). Thus, a right to contribution will be en- forced in equity through a partition suit, but this right does not alter the underlying ownership interests of the parties in the property. See Community Bank of Chillicothe, Mo., 870 S.W.2d at 84142.

A cotenant may have a right of contribution from another cotenant for expenditures made, above the cotenant's pro rata share, for repairs, improvements, taxes, and other expenses related to the property depending on the circumstances of the particular expenditure. Hartog v. Siegler, 615 S.W.2d 632, 636 (Mo. App. E.D. 1981). Any right to contribution must arise from the property subject to partition or be related to the property in some way. Grunden v. Nelson, 793 S.W.2d 569, 574 (Mo. App. S.D. 1990).

If expenditures are made with the consent of the cotenants, a right of contribution arises. Beckham v. Eggleston, 341 S.W.2d 337, 341 (Mo. App. W.D. 1960). Expenditures for improvements and repairs made without the consent of the other cotenants will give rise to a right of contribution if the expenditures:

• are made in good faith;
• are necessary and substantial;
• materially enhance the value of the property; and
• are made under circumstances in which it would be equitable to enforce contribution.

Hartog, 615 S.W.2d at 636. The right of contribution may be equal to the costs of the improvements or, if higher, the increase in the value of the property due to the improvements. Id. at 637. In no event can the right of contribution exceed the benefit to the property. Id. A cotenant is also entitled to contribution for payments, above the cotenant's pro rata share, for taxes assessed on the property, for repayment of a loan secured by the property, or for insurance on the property when these payments benefit all owners. Bass, 811 S.W.2d at 782.

A cotenant who is in exclusive possession of the commonly held property may be liable to the other cotenants for the rental value of the property. Id. An occupying cotenant is liable for rent if there is a rental agreement, the occupying cotenant has ousted another cotenant, or the occupying cotenant seeks reimbursement for expenditures made in connection with the property. Id. The occupying cotenant's liability is limited to the rental value of the property without considering the improvements that cotenant has made. Beckham, 341 S.W.2d at 340. To recover rent, an out-of-possession cotenant must proffer credible evidence of the rental value of the property. Bass, 811 S.W.2d at 782. An owner of property is presumed competent to testify about the value of the property. Id. A cotenant will also be liable to the other owners for any waste the cotenant commits on the property. See Childs v. Kansas City, St. J. & C. B. R. Co., 23 S.W. 373 (Mo. 1893).
Because the differing contributions made by cotenants give rise to an equitable right to contribution but do not alter the underlying ownership interests, a cotenant may not always be able to realize the contribution right. If cotenants owing contribution transfer their interests to a bona fide purchaser, such as a bankruptcy trustee, the cotenant to whom contribution is owed may not be entitled to claim set-offs against the bona fide purchaser for expenditures made before the purchase. See Community Bank of Chillicothe, Mo., 870 S.W.2d at 842.

3. (§13.15) Division or Sale of Property

The court must also determine whether the property is to be partitioned in kind or whether it is to be sold and the proceeds divided. A division in kind is mandated unless it will result in great prejudice to the owners. Rules 96.01, 96.11, 96.18. The test for whether partition in kind will result in great prejudice is whether the value of each owner's share of property will be materially less than the share of money each owner could probably obtain from the sale of the whole. First Nat'l Bank of Carrollton v. Eucalyptus, 752 S.W.2d 456, 458 (Mo. App. W.D. 1988). In making this determination, the court will consider the number of owners, the diversity of the terrain, the location of improvements, the access available to the property, and whether the value of the property is greater as a whole or subdivided. Id. at 45859. A partition in kind is not necessarily precluded even if the property has various terrains, diverse topography, and accessibility difficulties if the property can be divided in a manner that allows each owner a parcel that incorporates the various terrains, allows accessibility by easement, and is not materially less valuable than the share of proceeds each owner could probably obtain from a sale of the entire tract. Von Behren v. Oberg, 902 S.W.2d 338, 340 (Mo. App. E.D. 1995). The feasibility of a partition in kind is a question of fact, and the findings of the trial court are afforded great weight if substantial evidence supports them. Id.

If the court determines that the property can be partitioned in kind, it will appoint commissioners to divide the property. Rule 96.12. If the commissioners' report that the land, in fact, cannot be partitioned in kind without great prejudice to the parties, the court can order the sale of the property at that time. Rule 96.18. If the court determines at the outset that the property cannot be partitioned in kind, it will order the sale without the appointment of commissioners. Rule 96.11.
G. (§13.16) Interlocutory Judgment

Following the hearing on the petition, the court will enter a judgment in partition, appoint commissioners if necessary, and order the land partitioned in kind or sold. Typically, the court will also determine the respective interests and rights of the parties at this time, but it may defer consideration of the parties' competing claims until final judgment is entered. Colbert v. Howard, 707 S.W.2d 496, 499 (Mo. App. W.D. 1986).

The order of partition is an interlocutory judgment. Heintz v. Hudkins, 824 S.W.2d 139, 144 (Mo. App. S.D. 1992). The trial court may modify the order or set it aside at any time before final judgment. Fogle v. Pindell, 154 S.W. 81, 83 (Mo. 1912). Because the judgment is inter- locutory, its entry does not sever a joint tenancy or effect a partition of the property until confirmed. Heintz, 824 S.W.2d at 143. Final judgment is not entered until the court confirms the commissioners' report of a partition in kind or confirms the sale of the property and orders the proceeds distributed. Lester v. Tyler, 69 S.W.2d 633, 638 (Mo. 1934).

An interlocutory judgment that determines the rights of the parties may be appealed under § 512.020, RSMo 1994. This provision has been construed to allow the appeal of interlocutory orders only if they determine the ownership interests of the parties. Albright v. Kelley, 926 S.W.2d 207, 210 (Mo. App. S.D. 1996). Any party may appeal after final judgment is entered. Section 512.020. The failure to appeal an interlocutory decree does not, on a later appeal from the final judgment, prevent review of the matters determined by the interlocutory decree. Id.; Keith v. Keith, 599 S.W.2d 214, 219 (Mo. App. S.D. 1980).

H. Division of Property

1. (§13.17) Commissioners

Rule 96.12 provides that the court shall appoint three commissioners if it renders a judgment of partition in kind. The commissioners are to be compensated as determined by the court, and their compensation and expenses are taxed as costs. Rules 96.12 and 96.30. The commissioners are to give at least ten days' notice before proceeding to the execution of their duties. Rule 96.14. The commissioners' duty, as described by statute, is to "divide and set off, by proper metes and bounds, each share of the several persons interested, according to their respective titles." Section 528.240, RSMo 1994; see also Von Behren v. Oberg, 902 S.W.2d 338, 340 (Mo. App. E.D. 1995). The commissioners are to divide the property with due regard not only to the number of acres, but also to all factors relevant to value. Id. at 340. Of course, any division by the commissioners must take into account the relative interests of the cotenants as found by the court. Section 528.240. The commissioners may subdivide the property into lots and lay out streets if it is in the parties' interests to do so. Section 528.270, RSMo 1994.

After dividing the property, the commissioners must make a report to the court describing the partition in kind and the expenses incurred. Rule 96.15. The report must describe the lands divided and the shares allotted to each party with particularity. Section 528.280, RSMo 1994. If the commissioners find that the property cannot be divided in kind without great prejudice to the parties or that only a portion of the property can be partitioned, the commissioners must report this finding to the court. Rule 96.15. Any party may file written exceptions to the commissioners' report within thirty days after the service or posting of notice of the report. Rule 96.16.

2. (§13.18) Confirmation of Report and Division of
    Property

The trial court must set aside or confirm the commissioners' filed report. The court may set aside the report "for good cause." Rule 96.16. ""[G]ood cause" must be that the commissioners did not carry out their duty." Genetti v. Kesterson, 775 S.W.2d 536, 537 (Mo. App. S.D. 1989). The court should consider both the parties" respective interests in the property and the nature of the property itself in order to determine whether a proper division has been made. Sections 528.240(2) and 528.260, RSMo. 1994. The confirmation or rejection of the commissioners' report rests in the sound discretion of the trial court. See Von Behren v. Oberg, 902 S.W.2d 338, 340 (Mo. App. E.D. 1995).

If the court sets aside the commissioners' report, it will appoint new commissioners to divide the land properly unless it has determined that the land should be sold. Rules 96.16 and Rule 96.11. If the court finds that the commissioners divided the land properly, it will "confirm the [commissioners"] report and order judgment thereon." Rule 96.16. The court's order should impose an equitable lien on the property in favor of any cotenant entitled to contribution from the other cotenants. See Hahn v. Hahn, 297 S.W.2d 559, 567 (Mo. banc 1957). The costs of the proceedings will be taxed against the parties. See §13.24, infra. The court's order confirming the commissioners' report is the final judgment in the case. Lester v. Tyler, 69 S.W.2d 633, 638 (Mo. 1934). After entry of the judgment, the clerk of the court will file a certified copy of the commissioners' report and the court's judgment in each county where the land is situated. Rule 96.17.

I. Sale of Property

1. (§13.19) Order of Sale

If the court finds that the land cannot be partitioned in kind, either at the hearing on the petition or upon the return of the commissioners' report, the court will enter an order of sale. Rules 96.11 and 96.18. Only the court can order the sale of the property. Id. "The commissioners [have] no authority to direct the property should be sold." Genetti v. Kesterson, 775 S.W.2d 536, 537 (Mo. App. S.D. 1989).

The order should specify the place of the sale, the terms of the sale, and whether it will be conducted by the sheriff or by a specially appointed commissioner. Rule 96.19. The order is not to include the date of the sale. Id. Instead, the clerk is directed to deliver a copy of the order of sale to the sheriff or commissioner, who is to conduct the sale after publishing notice thereof. Id.

Although Rule 96.19 states that the order of sale "shall prescribe" the "place" of the sale, the order is not necessarily fatally flawed if it omits the specific place where the sale is to be held. See Plant v. Plant, 825 S.W.2d 674, 677 (Mo. App. S.D. 1992). The sheriff's notice of the sale, rather than the order of sale, contains the critical language necessary to advise interested parties. Id. "The purpose of the order of sale [is] to provide the sheriff with directions sufficient to permit him to compile and publish the requisite notice of sale and to conduct the sale." Id.

2. (§13.20) Publication of Notice

Rule 96.21 requires the sheriff or commissioner to advertise notice of the sale by publication at least thirty days before the sale in each county where the land is located. The notice shall be published in a regularly published weekly or daily newspaper designated by the plaintiff. Id. "If there is no such newspaper [in each such county,] then the publication shall be in a newspaper designated by the court." Id.
There is no requirement to provide anything but published notice of the sale to a duly summoned and served party of the partition action; neither actual notice of the time and place of the sale nor the best notice possible is required. Plant v. Plant, 825 S.W.2d 674, 677 (Mo. App. S.D. 1992). A party who is properly summoned and served with process advising of the pendency of the partition action is "charged with notice of all subsequent proceedings" in the case. Id. at 679. Thus, if the sheriff properly advertises or publishes notice of the sale, the mere fact that one of the parties does not see the published notice is not enough to set aside the sale on the ground that it constitutes a taking of property without due process. Id. As a practical matter, however, when the plaintiff's counsel is aware of the whereabouts of the defendants or their attorney, counsel should try to advise the parties of the time and place of the sale.

3. (§13.21) Manner of Sale

The procedures for a partition sale are set forth in several provisions throughout Chapter 528, RSMo, and Rule 96. The sheriff or commissioner is to advertise and sell the land. Rule 96.19. The sale shall be held in the county in which the land is located, and if a contiguous tract of land is located in more than one county, the sale may be held in any county in which a portion of the land is located. Rule 96.20. If separate tracts are located in different counties, the court shall designate in which one of those counties the sale shall occur. Id. The trial court is to designate the place within the specified county where the sale is to occur. Rule 96.19.

"Unless the court otherwise orders, the land may be sold in separate tracts or as a whole." Rule 96.23. Section 528.370, RSMo 1994, provides that the sale shall "be governed by the same regulations prescribed by law for sales of real estate under execution." Rule 96.24 states that the commissioner or sheriff shall execute and deliver a deed to the purchaser acknowledged in the same manner as execution deeds and shall collect and disburse the purchase money as directed by the court. The terms of the sale should be the same as those set forth in the trial court's order of sale. Rule 96.19; Forney v. Forney, 926 S.W.2d 889, 891 (Mo. App. E.D. 1996). Anyone who has the capacity to receive and hold realty may be the purchaser. Davidson v. I. M. Davidson Real Estate & Inv. Co., 125 S.W. 1143, 1152 (Mo. 1909). Following the sale, the sheriff shall report the different parcels sold, the names of the purchasers, and the sale price to the court and account for any expenses and all money received. Rule 96.26.
Partition is strictly statutory, and the property may be sold only in a manner authorized by statute or rule. Parks v. Rapp, 907 S.W.2d 286, 290 (Mo. App. W.D. 1995). The rules and statutes have been interpreted to allow only a public sale. Cook v. Cook, 759 S.W.2d 891, 893 (Mo. App. E.D. 1988). A court has no authority to approve a private sale, Bruce v. George, 982 S.W.2d 823, 825 (Mo. App. W.D. 1998), to order one cotenant to sell his or her interest to another, Vickers v. Vickers, 762 S.W.2d 482, 48384 (Mo. App. E.D. 1988), or to order one cotenant to buy the other's interest, Brooks v. Kunz, 597 S.W.2d 183, 187 (Mo. App. E.D. 1980).

The general rule is that the sheriff or commissioner must conduct the sale as specified by law and the court's order of sale. Forney, 926 S.W.2d at 891. The sheriff or commissioner has no authority to vary the procedures ordered by the court. Id.; Parks, 907 S.W.2d at 290. Not all variances from proper procedures, however, will render the sale void.

Nearly all appellate opinions discussing irregularities in a partition sale arise in cases in which the trial court confirmed the sale. In this context, it is often stated that, in order to render a sale void or voidable, the irregularity in the sale procedures must affect the sale to the prejudice of the parties. Parks, 907 S.W.2d at 290; Koester v. Koester, 543 S.W.2d 51, 54 (Mo. App. E.D. 1976). Mere technical irregularities in proper procedure will not void the sale. Forney, 926 S.W.2d at 891. When a substantial deviation from proper procedure has prejudiced the parties, however, the sale will be set aside. Keith v. Keith, 599 S.W.2d 214, 221 (Mo. App. S.D. 1980).

In general, inadequacy of sale price is not a sufficient ground for refusing to confirm a sale in partition unless the inadequacy is such as to raise the presumption of fraud. First Nat'l Bank of Carrollton v. Eucalyptus, 752 S.W.2d 456, 459 (Mo. App. W.D. 1988). Even evidence of a better purchase offer made after the partition sale does not prove, in and of itself, that the sale price was inadequate. Id. The standard by which the adequacy of price should be measured is what the property would bring at a similar sale that was properly conducted. Koester v. Koester, 543 S.W.2d at 54. Despite the language of these opinions, it is clear the trial court has discretion to set aside the sale for irregularities in procedures that would not result in an appellate court overturning the sale.

4. (§13.22) Confirmation of Sale and Distribution of
    Proceeds

Upon return of the sheriff's report of sale, the court must set aside or confirm the sale. The approval or rejection of the sale rests largely within the discretion of the trial court. First Nat'l Bank of Carrollton v. Eucalyptus, 752 S.W.2d 456, 459 (Mo. App. W.D. 1988). If the sale is set aside, a new one will be ordered. If the sale is confirmed, the court will order the distribution of the proceeds to the parties after the payment of costs. See §13.24, infra. The net proceeds are distributed by the sheriff to "the parties in interest, their conservators or legal representatives, according to their respective rights, as ascertained by the judgment of the court." Section 528.460, RSMo 1994. Thus, the order distributing the net proceeds must take into account the parties" respective interests in the property and any right of contribution entitling a cotenant to an additional share of the proceeds. Lester v. Tyler, 69 S.W.2d 633, 638 (Mo. 1934). The court may determine the parties" respective interests in the property and adjust the equities between them at the time of the order of partition or after the sale. Colbert v. Howard, 707 S.W.2d 496, 499 (Mo. App. W.D. 1986). The confirmation of sale and order distributing the proceeds is the final judgment in the action. Lester, 69 S.W.2d at 638.

5. (§13.23) Rights of Purchaser

Upon the purchase of property at a partition sale, the purchaser obtains equitable title to the property and an immediate right to possession. First Nat'l Bank of Carrollton v. Eucalyptus, 752 S.W.2d 456, 459 (Mo. App. W.D. 1988). Legal title is held in trust for the purchaser until delivery of the deed and confirmation of the sale. Id. Upon confirmation, the legal title relates back to the date of the sale. Id. at 460. Absent an agreement to the contrary, the purchaser is entitled to rents and profits accruing from the date of the sale. Id.

Upon purchase of the property, the purchaser attains a sufficient interest to be heard on a motion to set aside or confirm the sale. Koester v. Koester, 543 S.W.2d 51, 56 (Mo. App. E.D. 1976). The original parties to the partition action can no longer dismiss the action after the sale. Id. If the purchasers of the property at the partition sale are third parties who purchased in good faith, their rights may preclude the setting aside of the sale under some circumstances. See Brooks v. Kunz, 597 S.W.2d 183, 188 (Mo. App. E.D. 1980); cf. Keith v. Keith, 599 S.W.2d 214, 219'221 (Mo. App. S.D. 1980).

J. Costs of Action

1. (§13.24) Costs

The parties to a partition suit are responsible for the costs of the proceeding as well as the compensation of certain individuals involved in the action. The expenses incurred by the commissioners in dividing the property or by the sheriff or special commissioner in selling the property are to be taxed as costs. Rules 96.15 and 96.30. The sheriff or the commissioners are to be allowed reasonable compensation. Id. The court is also directed to allow reasonable compensation for the attorney instituting the action and for any guardian ad litem appointed. Rule 96.30. These expenses are also to be taxed as costs. Id.

If a partition sale has occurred, the costs will be taken from the proceeds of the sale before the remainder is distributed to the parties. Rule 96.27. If the land has been partitioned in kind, the costs will be taxed as in other proceedings. In addition, if the partitioned property has descended by virtue of a decedent's estate, the property may be held subject to the payment of claims against the estate. Rule 96.29.

2. (§13.25) Attorney Fees

Rule 96.30 provides that the court "shall allow a reasonable fee to the attorney instituting the action in partition." The directive to pay attorney fees is mandatory. Buchanan v. Mitchell, 873 S.W.2d 945, 947 (Mo. App. E.D. 1994). Failure to award any fee is reversible error. Id. Attorneys who bring partition actions for themselves as plaintiffs are entitled to attorney fees. Colbert v. Howard, 707 S.W.2d 496, 497 (Mo. App. W.D. 1986). Even if a partition action is settled by the parties, the attorney may still be entitled to fees. Ward v. Ward, 640 S.W.2d 477, 478 (Mo. App. E.D. 1982).

The amount of compensation to be awarded, however, is within the discretion of the trial court. Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo. banc 1980). The plaintiff's attorney is entitled to compensation because many of the attorney's services inure to the benefit of all the property owners. Buchanan, 873 S.W.2d at 948. Consequently, the attorney's compensation should be based on the services rendered for the benefit of all property owners. Brooks v. Kunz, 637 S.W.2d 135, 141 (Mo. App. E.D. 1982). The services the attorney performs for the sole benefit of the attorney's client should not be taxed as costs. Buchanan, 873 S.W.2d at 94849.

The trial court may establish the amount of attorney fees without the aid of any evidence. Brooks, 637 S.W.2d at 141. The factors to consider are:

• the amount and character of the legal services rendered;
• the nature and importance of the litigation;the degree of responsibility assumed by the attorney
• the degree of professional skill and expertise demonstrated by the attorney; and
• the value of the property.

Ward, 640 S.W.2d at 479. The sale price is the prime and most significant factor to be considered. Id. at 478¿79. The amount of the attorney fees awarded will be upheld unless it is proven to be a clear and manifest abuse of discretion. Nelson, 601 S.W.2d at 21.

K. (§13.26) Appeal

The right to appeal from a partition action is set forth in § 512.020, RSMo 1994, which authorizes appeals from both a "final judgment in the case" and "interlocutory judgments in actions of partition which determine the rights of the parties." Thus, parties to a partition action may have two opportunities to appeal the trial court's decisions.

First, the parties may appeal the trial court's interlocutory judgment in partition if the judgment determines the rights of the parties. Section 512.020. The courts have interpreted this provision as requiring that the court's interlocutory judgment determine the parties' respective interests in the property before an appeal can be taken. Albright v. Kelley, 926 S.W.2d 207, 210 (Mo. App. S.D. 1996). Not all interlocutory judgments determine these rights. See, e.g., id. Therefore, the right to appeal the interlocutory judgment is not present in all partition actions.

Regardless of whether the parties could have appealed the interlocutory judgment of partition, they may appeal from the final judgment in the case. Section 512.020; Keith v. Keith, 599 S.W.2d 214, 219 (Mo. App. S.D. 1980). The failure to appeal any matters determined by the interlocutory judgment does not preclude review of these matters upon appeal from the final judgment. Id. The final judgment in a partition action is the confirmation of the commissioners' report or the confirmation of sale and order distributing proceeds. Lester v. Tyler, 69 S.W.2d 633, 638 (Mo. 1934).

The standard of review for appeals from partition actions, as court-tried cases, is prescribed by Rule 73.01 as interpreted in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The appellate courts must uphold the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Hartog v. Siegler, 615 S.W.2d 632, 636 (Mo. App. E.D. 1981). The court of appeals will overturn the trial court's judgment on the basis that it is against the weight of the evidence only with great caution. Id. Most issues considered by the trial court are factual questions, which the trial court is afforded considerable discretion in resolving.

L. (§13.27) Partition of Personal Property

Section 528.620, RSMo Supp. 1999, and Rule 96.32 provide for the partition of personal property. The authority to bring a partition action for personal property extends to the same class of owners as the authority to partition real property. Rules 96.32 and 96.01. Rule 96.32 provides that the procedure shall be, as nearly as possible, the same as the procedure for the partition of real property.

M. (§13.28) Sale of Property Subject to Estate for Life or
    Years

At common law, a tenant with an estate for years or for life could not partition the tenant's estate from the remainder. Gray v. Clements, 227 S.W. 111, 112 (Mo. 1920). Similarly, no remaindermen could partition the remainder from the life estate or estate for years. Id. These partitions could not be maintained because partition lies to set apart concurrent, not successive, estates. Id. By statute and Rule, Missouri now allows a person holding an estate for years or life to sue the remaindermen for the sale of the property on the basis that the immediate estate is burdensome and unprofitable. Section 528.010, RSMo Supp. 1999; Rule 96.03. Upon the requisite showing, the life tenant may have the land sold in the same manner as other sales of land not susceptible to division in kind. Id. The costs of the proceeding and the value of any commutable estate that is requested to be commuted are paid from the proceeds of the sale. Id. The balance of the proceeds are to be invested by the clerk as directed by the court, and the income is to be distributed to the owners of the life estate or estate for years. Id.