David Fite v. Harold Wilson, et al--Appeal from 123rd District Court of Panola County

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana




No. 06-05-00131-CV



DAVID FITE, Appellant





On Appeal from the 123rd Judicial District Court

Panola County, Texas

Trial Court No. 2003-A-142



Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter




Harold Wilson filed a partition suit alleging that he owned an undivided one-half interest in a forty-acre tract. Jeff Speed acquired title to the entire forty-acre tract in 1928 and in 1949 conveyed an undivided one-half interest to Harrison Speed and wife. After several intervening transfers, Wilson now owns the one-half interest originally conveyed to Harrison Speed. The one-half interest of Jeff Speed was never further conveyed and the heirs of Jeff Speed now own that one half. David Fite, one of the heirs of Jeff Speed, urged the trial court to divide the property in kind. The trial court found the property could not be divided fairly and equitably in kind and ordered the property sold. We affirm the judgment of the trial court.

Fite's Contention

Fite contends the evidence does not support the trial court's findings that the land could not fairly and equitably be divided in kind and ordering the property sold. It is not clear whether he is alleging that the evidence is legally insufficient or factually insufficient to support such finding. We will address both issues.

Standard of Review

In reviewing legal sufficiency, we view the evidence in a light that tends to support the disputed finding, disregarding contrary evidence and inferences. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). In reviewing factual sufficiency, we consider all the evidence and will uphold the finding unless the supporting evidence is so weak or the finding so against the overwhelming weight of the evidence as to be manifestly unjust. AT & T Corp. V. Rylander, 2 S.W.3d 546, 551 52 (Tex. App. Austin 1999, pet. denied).

General Rule Partition in Kind Preferred Over Sale

A partition in kind is preferred over a sale and division of the proceeds because it is not the policy of the courts to compel an owner to sell property against the owner's will. Irons v. Fort Worth Sand & Gravel Co., 284 S.W.2d 215, 219 (Tex. App. Fort Worth 1955, writ ref'd n.r.e). Texas Rule of Civil Procedure 770 states: "Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much as is incapable of partition . . . ." Tex. R. Civ. P. 770. The burden is on the party opposing partition in kind and seeking a partition by sale. Cecola v. Ruley, 12 S.W.3d 848, 853 n.13 (Tex. App. Texarkana 2000, no pet.) (citing Adams v. Adams, 205 S.W.2d 801, 803 (Tex. Civ. App. Waco 1947, no writ)). Therefore, Wilson had the burden to prove that an in-kind partition would not be fair. Cecola, 12 S.W.3d at 854.

Trial Evidence

Don Austin, a surveyor, testified that he examined the forty-acre tract. He could find no evidence of an easement that allowed one to access the tract and it appeared to be landlocked. There was no improved surface on the property. No structures are on the property. There was a lane, which was overgrown with underbrush, on the sixty-acre tract adjoining this tract, but it is possible that an easement existed. There was a gate across the lane both now and back in the 1980s. Austin originally testified that he thought the forty-acre tract could be divided into two equal parcels, but he stated on redirect that it would "probably be impossible" to divide it into two equal tracts.

David Fite, who is an heir of Jeff Speed, testified that he wanted the property to stay in his family. Fite acknowledged that, due to the nonuniform nature of the timber on the property, the amount of timber on the tracts would have to be considered to divide the tract equally in two parts. He believed the property to be worth $100,000.00. Fite did not know all the heirs of Jeff Speed and agreed it would be hard to determine the interest of each heir. He wanted to allow Wilson one half of the property and all the heirs of Jeff Speed the other one half.

Leonard Mitchell, a forester, appraised the value of the timber on the forty-acre tract at $70,000.00. When asked if the property could be divided giving each side an equal value of the trees he answered, "I don't see it happening." Later, when asked if it was "hypothetically" possible to divide it into something like twenty-two and eighteen acres for an equal division, he answered, "That's possible." He also acknowledged that the value of the property was conditioned on the ability to access it and, if it is landlocked, he would not make an offer on the timber. He explained that the timber was not uniform over the tract and some acres, in terms of the timber value, are more valuable than others. In order to access the property, he had to obtain a key to unlock a gate. The south end of the property had better timber than the north end.

Olin Jeffrion Jr., a realtor, testified that he had examined the property and thought it could be partitioned in kind without a decrease in the value of the tract. He suggested dividing the property into two twenty-acre tracts from the south boundary line to the north boundary line. He thought that would equally divide the timber also. In evaluating the property, he relied on the forester's report that the timber value was $70,000.00. He acknowledged that, if there was no easement, it would decrease the value of the tract by the amount that it would be necessary to spend to acquire an easement. Some attempts at gaining an easement are successful and some are not. Some persons have acquired a needed easement for $6,000.00 $10,000.00, while others "ended up in the courthouse."


For a legal sufficiency analysis, we review the evidence that tends to support the disputed finding and disregard contrary evidence. Both the surveyor and the forester testified that it was not possible to equally divide the property. This is legally sufficient evidence to sustain the finding of the trial court.

In reviewing factual sufficiency, we consider all the evidence and will uphold the finding unless the supporting evidence is so weak or the finding so against the overwhelming weight of the evidence as to be manifestly unjust. Fite acknowledges that, if he was trying to have each heir's undivided interest set aside to each individual, it would be impossible and the property would be incapable of a fair and equitable division. Instead, he argues that the property should be divided in two parts giving Wilson one half of the property and setting aside the remaining one-half interest to all the heirs of Jeff Speed in common. In support of this argument, Fite cites Mansfield v. Davenport, 362 S.W.2d 912, 913 (Tex. Civ. App. San Antonio 1962, writ ref'd n.r.e.) and Gorman v. Campbell, 135 S.W. 177 (Tex. Civ. App. 1911, writ ref'd). In Mansfield, eight heirs owned equal shares in the property. None of the owners claimed that the property was incapable of division in kind and the trial court ordered it divided in kind. The dispute was that only one of the heirs desired to have his undivided one-eighth interest set aside as a specific tract of land, whereas the other heirs preferred continued joint ownership of the balance of the property. The trial court ordered that each heir should be awarded a specific one-eighth tract of land. The appellate court affirmed the partition in kind for the one tract, but reversed the partition of the remainder of the property as all of the heirs appeared and requested continuation of common ownership of the seven-eighth interest. That is a different factual situation than the present one where the dispute is whether the tract is capable of a fair and equitable partition in kind.

The Gorman case quotes another case (Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676 (1887)), for the proposition that a court may set aside a specific tract to one party and allow the defendants to own the balance of the property in common. We agree that, in the proper circumstance, where one party wants a partition in kind of a specific interest and all other owners desire to retain common ownership, the trial court could enter such an order. However, in this case, Fite was the only party who appeared and requested that all the remaining owners continue to hold the property jointly. He acknowledges that his ownership interest is very small (less than one acre) and that there are numerous other heirs that did not respond. This is not a case where one party was authorized to speak for all other owners Fite did not even know all of the owners, how to contact them, and did not represent that he spoke in their behalf.

Furthermore, in considering the sufficiency of the evidence to support the trial court finding that the property could not be fairly and equitably divided in kind, two expert witnesses, even though their testimony vacillated somewhat, testified the property could not be fairly divided even into two parts. One difficulty was that the timber on the tract of land was not uniform and, therefore, it would be difficult to divide the value of the property fairly. Second, there was a serious question as to whether the property was landlocked, which would make the value of the property problematic in the event the timber could not be harvested. Third, there are numerous heirs listed in the plaintiff's petition (Wilson requested the issuance of citation for eleven known heirs and cited the unknown heirs of sixteen others) which might require the property to be divided into tiny parcels. On Fite's side of this analysis, there is testimony of Olin Jeffrion, Jr., a realtor who thought the property could be divided into two equal portions without damage to the value, but on cross-examination acknowledged that, if there was not an easement giving access, the property would lose some value.

This case is factually similar to Hill v. Taylor, from the Austin Court of Appeals. Hill v. Taylor, No. 03-03-00540-CV, 2004 WL 1469300 (Tex. App. Austin July 1, 2004, no pet.) (mem. op.). In Hill, thirty-one heirs owned undivided interests in a 100-acre tract. The trial court found the property could not be partitioned in kind and ordered a sale. As in this case, the appellant challenged the legal and factual sufficiency of the evidence. The Austin court explained that one of the parties testified that partition in kind was not practical as the parties could not agree on a division, thirty-one heirs owned an interest in the property, and the property was not bounded on all sides by road access and some of the tracts would be landlocked. Additionally, it would have been unfair to carve out one heir's property from a corner on the highway and leave the remaining heirs the balance. The Austin court found the evidence was legally and factually sufficient to support the trial court's finding. Likewise, based on the testimony presented here, we cannot say that evidence to support the finding that the property could not be fairly and equitably divided in kind is so weak or so against the overwhelming weight of the evidence as to be manifestly unjust.

For the foregoing reasons, we affirm the judgment of the trial court.


Jack Carter


Date Submitted: June 8, 2006

Date Decided: July 6, 2006