Cox v. Frierson

451 S.E.2d 392 (1994)

Eddie M. COX, Rosa L. McAllister, Annie R. Becote, Ruby M. Brandon, James Singletary, Jr., Ernestine McAllister, Kenneth N. Coar, Ronald C. Clarida, Dorothy Vaughn, Earl McAllister, Elease Burgess, Rosa A. Green, Hattie Bell Holloway, Almeto Jackson, Johnny L. McAllister, Dorothy M. Edwards, David McAllister, Chris Scott and Eric Scott, Michelle Scott and Victoria Scott, three minors, by their Guardian Ad Litem, Mordecai C. Johnson, Respondents, v. Arthur L. FRIERSON, Daisy F. Eaddy, Sarah Jane Eaddy, Louise McAllister, Jessie M. Pringle, Benjamin Frierson and Curtis Scott, Petitioners.

No. 24163.

Supreme Court of South Carolina.

Heard September 21, 1994.

Decided November 28, 1994.

*393 Brenda Reddix-Smalls, Columbia, for petitioners.

Robert G. Knight, Florence, for respondents.

Rogers W. Kirven, Florence, Guardian Ad Litem.

PER CURIAM:

This case is before us on a writ of certiorari to the Court of Appeals to review its decision in Cox v. Frierson, ___ S.C. ___, 429 S.E.2d 866 (Ct.App.1993). Petitioners claim the Court of Appeals erred in affirming the special referee's order of judicial sale. We affirm in part, reverse in part, and remand this case to the special referee for further proceedings.

This is an action for partition tried before a special referee. Despite the mandatory provision of Rule 71(a), SCRCP, that all proceedings in partition actions be recorded, no record was made in this case. The special referee found partition in kind was not feasible and ordered a judicial sale. He did not, however, consider the option of partition by allotment which is statutorily preferred along with partition in kind over a judicial sale of the property. S.C.Code Ann. § 15-61-50 (1976); see also Rule 71(f)(4), SCRCP. Accordingly, we affirm the denial of partition in kind, reverse the order of judicial sale, and remand this case to the special referee for a hearing on the record regarding the option of allotment. If the special referee finds partition by allotment cannot be fairly and impartially made, a judicial sale may be ordered.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.