Court Lacks Power in Partition Action to Order One Joint Owner to Pay the Other Joint Owner for Their Interest

A recent case from the Amarillo Court of Appeals analyzed the limits of a court’s power in a statutory partition proceeding.  See Rodriguez v. Rivas, No. 07-18-00033-CV, 2019 WL 1447000 (Tex. App.—Amarillo Apr. 1, 2019, no pet.).

In 2006, Juan Jimenez Rodriguez and Carolina Rivas purchased a 1.322 acre of land in Navarro County, Texas, after which they built a house on the property. They had a falling out, and in 2014, Rodriguez filed an action for partition of the property under Chapter 23 of the Texas Property Code and Rules 756 through 771 of the Texas Rules of Civil Procedure. After a bench trial, the trial court found the property was not susceptible to partition in kind, but pursuant to Rivas’s request, instead of ordering the property to be sold, the trial court ordered that Rivas pay Rodriguez the value of his interest over a ten-year period in monthly installments. Rodriguez appealed, arguing that the trial court abused its discretion in not ordering the property to be sold. Rivas argued that the trial court implicitly found that a fair and equitable division of the property could not be conducted under Tex. R. Civ. P. 770, and therefore chose to “‘[bypass] the statutory partition provided for in the Texas Property Code’ by conducting an ‘equitable owelty partition’ pursuant to its authority under Rule 776. Id. at *3. Rule 776 provides, “[n]o provision of the statutes or rules relating to partition shall . . . preclude partition in any other manner authorized by the rules of equity, which rules shall govern in proceedings for partition in all respects not provided for by law or these rules.” In the court’s view, Rule 776 “allows for an adjustment of equities, but not a complete circumvention of the partition scheme.” Id. at *4. The court did not address Thomas v. Sw. Settlement & Dev. Co., 123 S.W.2d 290 (Tex. 1939), which arguably could be read to support the trial court’s relief as a matter of equity. In Thomas, the Texas Supreme Court explained:

At a very early date courts of equity assumed jurisdiction in cases of partition, and even after partition at common law was extended by statute to joint tenancies and tenancies in common, the remedy in the law courts was still so narrow and imperfect that the jurisdiction of equity in partition soon became almost exclusive. In this State partition by suit, whether brought under the statute or without the aid of the statute, does not proceed independently of the rules of equity. Article 6106, being a part of the partition statute (Articles 6082-6109, Revised Civil Statutes of 1925) and in effect since 1879, expressly provides that no provision of the statute shall preclude partition in any other manner authorized by the rules of equity and that the rules of equity shall govern in proceedings under the statute in all things not provided for therein. A partition suit, therefore, under the statute is not strictly a proceeding at law, for it is governed by the rules of equity in all things not expressly provided for in the statute. Furthermore, procedure under the statute is not obligatory. The court may administer relief upon the principles of equity without the aid of the statute. 

Id. at 296 (internal citations omitted, emphasis added).

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