Preview:

IN THE COURT OF APPEALS 08/06/96 OF THE STATE OF MISSISSIPPI
NO. 94-CA-00531 COA

EDMOND ALLEN JENKINS AND DONNA B. JENKINS APPELLANTS v. ELDON THOMAS JENKINS, EARL BURNELL JENKINS, LAVELLE JENKINS McREE, ALICE JENKINS THOMPSON, EDMUND BURKE JENKINS, ROBERT EUGENE JENKINS, FRANCIS JENKINS SIMMONS, SHIRLEY JENKINS SESSIONS, SARA ANN JENKINS WHITE, HENRIETTA JENKINS BUCKLEY AND DILLY JENKINS APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. DONALD B. PATTERSON COURT FROM WHICH APPEALED: CHANCERY COURT OF COPIAH COUNTY ATTORNEY FOR APPELLANTS: MARC BRAND ATTORNEYS FOR APPELLEES: JOHN T. ARMSTRONG DUDLEY F. LAMPTON NATURE OF THE CASE: PARTITION OF LAND TRIAL COURT DISPOSITION: LAND PARTITIONED INTO TWO PARTS: ONE-SIXTH AND FIVE-SIXTHS

BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: This appeal arises from a partition action which sought to partite a one-sixth interest from a 219-acre tract of land. All parties are descendants of a common ancestor from whom they have inherited their respective interests in the land subject to this partition action. Appellees sought the partition of their collective interest from the one-sixth interest held by Allen and Donna Jenkins (collectively Allen) (hereinafter "Allen") pursuant to section 11-21-3. The chancery court confirmed the report of the commissioners who partitioned the property. Feeling aggrieved that he was not awarded the tract of land he specifically requested, Allen Jenkins appeals arguing the following: (1) the chancellor abused his discretion by confirming the commissioner's partition report because the report was invalid as the result of improper conduct of the commissioners; (2) the chancellor abused his discretion by failing to properly instruct the commissioners about their duty as fact finders, and in particular, their duty to inspect all parts of the land to be partitioned and to account for any improvements; and (3) the Mississippi partition statutes were unconstitutionally applied in this case. Finding no error, we affirm. STATEMENT OF THE FACTS The 219 acres located in Copiah County were originally acquired by Jesse Allen Jenkins, grandfather of Appellant Allen Jenkins. Jesse Allen Jenkins is also the common ancestor to all the Appellees from whom they inherited their respective interests. Jesse farmed the land and built a house on his property. Cecil W. Jenkins, son of Jesse and father of Allen, was born and raised in the home. Cecil had a pond built on the property. There was testimony that other heirs contributed to the cost of the pond. Cecil raised his family in the house and farmed the land. As a boy, Allen helped his father plant fruit, pecan, black walnut, and chestnut trees around the pond. At the age of eighteen, Allen left the farm to serve in the military. He returned in 1973 to raise his family. In 1979, the house was destroyed by fire. After Cecil's death in 1979, Allen and Donna moved onto five acres of land which they owned. This property adjoined the southwest corner of Jesse's 219 acres. Allen continued to maintain the part of Jesse's estate containing the pond, trees, and former house site. Allen placed a small trailer, to be used as a deer camp, on the former home site and provided it with plumbing and electricity. Since 1979, Allen regularly bushhogged the property and cared for the trees. Allen stocked the pond with catfish. Allen desired to keep the northeast corner of Jesse's acreage which contained the pond, fruit and nut trees, the deer camp, and the former home site. A partition action was brought by the Appellees, the intestate heirs of Jesse. They sought to have their collective five-sixths interests partitioned as one undivided tract from Allen and Donna's one-sixth interest. The parties agreed to withdraw their respective claims for monetary damages, and limiting the issue to partition pursuant to an agreed judgment on May 6, 1993.

Commissioners were appointed and the chancery court of Copiah County ordered the commissioners to divide the property into two tracts. The chancellor authorized the parties to make recommendations to the commissioners in writing. Appellees requested that Allen receive his share on the southwest corner of the acreage which adjoined the five acres Allen already owned, and on which he lived. The attorney for the Appellees sent a letter to the commissioners which included their request, referred to Allen's preference, and instructed the commissioners to divide the 219 acres into three tracts. The commissioners filed their report with the court on October 4, 1994. However, their report partitioned the property into three tracts. The chancellor held, after a hearing on October 21, 1993, that the commissioners acted beyond the scope of their authority in dividing the tract into three tracts. The chancellor also held that Allen and Donna had failed to show that the commissioners were so prejudiced by the letter from the Appellees' attorney that they could not act impartially. The judge denied Allen and Donna's request to disqualify the commissioners and ordered the commissioners to re-divide the property into two tracts. The court also instructed the attorneys to send the commissioners a joint document which expressed their respective recommendations. The attorneys for both parties sent a letter dated October 25, 1993, to the commissioners containing their requests and providing the commissioners with instructions. On December 6, 1993, the commissioners filed their second report with the court. This second report appeared the same as the first except that the term "three" was changed to "two" where it denoted the number of tracts. The plat appeared the same except that the third tract's allocation had been removed and was now included in the larger undivided interest, thus leaving Allen and Donna with the same allocation. On January 3, 1994, Allen filed his suggestion for partition requesting the northeast corner containing the pond, fruit and nut trees, the deer camp, and the former home site. Allen and Donna objected to the commissioners' second report alleging that they failed to meet their statutory duties by failing to inspect the property to determine whether the partition was feasible and equitable. After a hearing on February 2, 1994, the chancellor confirmed the report of the commissioners. ARGUMENT AND DISCUSSION OF THE LAW I. THE CHANCELLOR ABUSED HIS DISCRETION BY CONFIRMING THE COMMISSIONER'S PARTITION REPORT BECAUSE THE REPORT WAS INVALID AS THE RESULT OF IMPROPER CONDUCT OF THE COMMISSIONERS: (A) THE COMMISSIONERS FAILED TO GIVE ANY CONSIDERATION TO THE IMPROVEMENTS ALLEN JENKINS MADE UPON THE LAND AS REQUIRED OF THEM UNDER MISSISSIPPI LAW; (B) ASSUMING ALLEN JENKINS' DESIRED PARTITION WAS INFEASIBLE, HAVING DEPRIVED ALLEN OF THE IMPROVEMENTS HE MADE ON THE LAND, THE COMMISSIONERS SHOULD HAVE CONDUCTED AN ACCOUNTING.

II. THE CHANCELLOR ABUSED HIS DISCRETION BY FAILING TO PROPERLY INSTRUCT THE COMMISSIONERS ABOUT THEIR DUTY AS FACT FINDERS, AND IN PARTICULAR, THEIR DUTY TO INSPECT ALL PARTS OF THE LAND TO BE PARTITIONED AND TO ACCOUNT FOR ANY IMPROVEMENTS. Allen's first two arguments concern essentially the same issue, the commissioners, and ultimately the chancellor, failed to account for his improvements on the tract of land he requested. Consequently, we will consider these arguments together. Allen attacks the partition process because of the commissioners' failure to inspect all of the property subject to this partition action. Specifically, Allen argues that the commissioners failed to inspect the northeast tract to assess the improvements, and he claims he is entitled to be awarded the benefit of his work on the property. This argument, upon first glance, appears to have merit. Clearly, the commissioners charged to partite 219 acres should be informed as to the condition and configuration of the land subject to partition. Section 11-21-19 requires that the land be partitioned into equal shares. Miss. Code Ann.

Download Edmond Allen Jenkins vs. Eldon Thomas Jenkins.pdf

Mississippi Law