Part 2. PARTITION

LAW REVIEWS. --For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).
 
JUDICIAL DECISIONS
 
WHEN REMEDY AT LAW IS REQUIRED FOR PARTITION. --Unless, due to reasons stated in former Code 1933, § 85-1501 (see O.C.G.A. § 44-6-140) equitable jurisdiction was applied, the parties seeking a partition of lands were required to resort to the remedy at law. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).
 
PETITION FOR PARTITION AND ACCOUNTING PRESENTS CASE IN EQUITY. --Petition which not only embraces a statutory application for partition but also prays for an accounting from cotenants for rents and profits presents a case in equity. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).
 
WRIT OF MANDAMUS CANNOT COMPEL COMMISSIONER APPOINTED BY THE COURT TO PARTITION LANDS TO DISCHARGE DUTY. The duties of a commissioner appointed by the court to partition lands are purely administrative, and to issue a mandamus to require one of the commissioners to act would be the equivalent of the court ordering itself to act. Failure to act might be grounds for contempt proceedings but not mandamus. Lankford v. Kirkland, 207 Ga. 504, 62 S.E.2d 836 (1950).
 
ATTORNEY'S FEES IN PARTITION PROCEEDING. --When there is only a statutory proceeding for partition of lands, attorney's fee for the moving party cannot be deducted from the proceeds of sale by the partitioners as a part of the expense contemplated by that statute. Werner v. Werner, 196 Ga. 1, 25 S.E.2d 676 (1943).
 
WHEN PETITION FOR PARTITION CONSTITUTES ELECTION TO SELL INTEREST. --When a written agreement between tenants in common provides that either party may sell that party's interest in the property, the filing of a petition for partition by one of the tenants in common constitutes an election to sell one's interest in the property. Bowers v. Bowers, 208 Ga. 85, 65 S.E.2d 153 (1951).
 
CITED in McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Nixon v. Nixon, 197 Ga. 426, 29 S.E.2d 613 (1944); Johnson v. Flanders, 92 Ga. App. 697, 89 S.E.2d 829 (1955); Lowe v. Loftus, 314 F. Supp. 620 (S.D. Ga. 1970).
 
RESEARCH REFERENCES
 
ALR. --Partition: division of building, 28 ALR 727.
   Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 ALR 741.
   Interference by court with decision of commissioners in partition suit, 46 ALR 348.
   Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 46 ALR 634; 106 ALR 906.
   Right of executor or administrator to bring proceedings for partition of real property, 57 ALR 573.
   Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 ALR 352.
   Testamentary provisions operating to prohibit or postpone partition, 85 ALR 1321.
   Partition as affecting pre-existing mortgage or other lien on undivided interest, 93 ALR 1267.
   Power of court in partition proceedings to direct sale of property without aid of or contrary to recommendation of commissioner or referee, 95 ALR 1330.
   Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase for purposes of statute of descent and distribution, 103 ALR 231.
   Parol partition or division of real property as between undivided interests held by same person in different capacities, 116 ALR 626.
   Cotenant's right to allowance in partition in respect of amount paid to discharge mortgage or other lien upon premises as affected by statute of limitations or laches, 117 ALR 1442.
   Right of party to voluntary partition, or of his successor, as against other parties thereto, or their successors, where title fails as to parcel, or part of parcel, conveyed to him, 123 ALR 489.
   Holder of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 ALR 414.
   Parol partition and the statute of frauds, 133 ALR 476.
   Right to, and effect of, partition of undivided interests held respectively in fee and in life estate with remainder, 134 ALR 661.
   Homestead right of cotenant as affecting partition, 140 ALR 1170.
   Right to partition in kind of mineral or oil and gas land, 143 ALR 1092.
   Dower and homestead rights as affecting partition proceedings, 159 ALR 1129.
   Partition: construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 ALR 862.
   Partition of undivided interests in minerals in place, 173 ALR 854.
   Burden of proof in partition suit as regards alleged prior voluntary partition of property, 1 ALR2d 473.
   Timber rights as subject to partition, 21 ALR2d 618.
   Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 ALR2d 643.
   Maintainability of partition action where United States or state owns an undivided interest in property, 59 ALR2d 937.
   Contractual provisions as affecting right to judicial partition, 37 ALR3d 962.
   Right to partition of overriding royalty interest in oil and gas leasehold, 58 ALR3d 1052.
   Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 ALR3d 473.
   What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 ALR3d 502.