Langford v. Brickell

Per Curiam. A bankrupt, at the time of her adjudication as such, was a tenant in common with her brothers and sisters of a parcel of real estate. The appellants here are the trustees in bankruptcy. They filed a bill in the court below alleging that on February 5th, 1930, Maude E. Brickell was adjudicated a bankrupt,—that on said date she was seized of a 6/15 interest in certain property described in the bill of complaint as tenant in common with her brothers and sisters, the defendants in the court below, who each owned an undivided interest in said property. Partition was prayed for, but the Circuit Judge dismissed the bill after sustaining demurrers thereto. The appeal is from the decree of dismissal. The bill of complaint contains allegations to the effect that the other tenants in common with the bankrupt were hostile and bitter toward the trustees in bankruptcy who represent the creditors of Maude E. Brickell, but no overt acts of hostility are disclosed or clearly shown to be in contemplation of the defendants. In the center of the property sought to be partitioned there is located a family cemetery or burial ground of the Brickell family, because of which, it is averred an undivided interest in the property is not readily saleable, or *674 if saleable, tbat tbe sale would have to be made at a great sacrifice to the creditors of tbe bankrupt. To support tbis conclusion of unsaleability as an undivided interest, it is charged tbat the co-tenants of tbe bankrupt will do all in tbeir power to discourage tbe sale of tbe bankrupt’s undivided interest, if sold tbat way, and to prevent sucb interest bringing an adequate price. Corroborative of tbis allegation is tbe averment tbat although tbe property is of tbe reasonable value of $120,000.00 tbat tbe bankrupt has scheduled her interest therein as of no value, and tbat tbe co-tenants will throw every legal obstacle in tbe way of recovery of possession, or partition of said property by any purchaser of an undivided interest therein; tbat all of tbe aforesaid facts are well known to tbe investing public and to those who might be interested in making a purchase of tbe bankrupt’s interests in tbe property. Tbe bill discloses the. fact tbat tbe trustees in bankruptcy have filed tbeir petition with tbe referee setting forth tbe facts hereinbefore referred to, and tbat an order has been entered in tbe bankrupt court to tbe effect tbat it. is necessary to protect tbe rights of tbe trustees and of tbe creditors, to partition tbe lands in which tbe bankrupt has an undivided interest before selling tbe interest of the bankrupt therein. It is alleged tbat tbe bill for partition is accordingly brought by tbe trustees in bankruptcy under tbe approval and by tbe direction of the bankrupt court. In Hobbs v. Frazier, 56 Fla. 796, 47 Sou. Rep. 929, it was held by tbis court tbat tbe bankruptcy law does not expressly authorize partition proceedings by tbe trustees in bankruptcy. It was further bold in that ease that inasmuch as it was not shown by tbe pleadings tbat a partition proceeding was essential to tbe performance of tbe statutory duties of a trustee in bankruptcy under tbe circumstances there involved, and because it was not *675 shown that any duty to seek partition had been imposed upon the trustee in that ease to seek partition, that the statutes of this State relating to that subject should not be unreasonably extended to cover trustees in bankruptcy who have bare legal title, but only special statutory duties to perform in connection with such title; who likewise have no beneficial interest in the estate of the bankrupt and where there is no allegation that partition is necessary to fully protect the rights of those interested in the estate of the bankrupt. The case of Hobbs v. Frazier, supra, is reported in 16 Am. & Eng. Ann. Cases, 558, and in a note to the case there annotated and reported, the annotator on page 560, in commenting on and construing the holding in that case, says: “The reported case appears to be the only decision upon the right of a trustee in bankruptcy, appointed by virtue of the Federal bankruptcy act to sue for a partition of property belonging to the bankrupt. The rule therein laid down is that as a trustee in bankruptcy is not expressly authorized by the act to sue for a partition of property belonging to the bankrupt, he cannot bring such an action where no order of the bankruptcy court has been obtained authorizing and directing the bringing of the action, or where it does not appear that such a proceeding is essential to the statutory duties of the trustee, as for the protection of the rights of those interested in the estate of the bankrupt. The decision of the reported case apparently leaves open the question whether such an action may be maintained where one or more of the above facts exist.” The question now presented is whether or not the appellants, as trustees in bankruptcy, by procuring an order from the bankrupt court directing them to seek partition of the bankrupt’s interest, and by alleging that because of the attitude of the co-tenants the undivided interest of the bankrupt will not bring an adequate price, have demonstrated a right to maintain their suit for partition in the *676 instant ease, the question here raised being left open by the previous decision of this court just referred to. A majority of the court are of the opinion that no such case has been made out. The trustee in bankruptcy may, according to the law on the subject, sell the undivided interest of the bankrupt in the land, and convey such interest to the purchaser, who thus may become a tenant in common with the owners, of the other interests, and who after he become such, can seek his own partition in the courts or voluntarily agree to a division without legal proceedings. Whatever may be the rights of a trustee in bankruptcy to seek a partition of real estate under the present laws of this State under any circumstances, it is clear that the allegations of complainants’ bill do not make out a ease showing that partition is “necessary to fully protect the rights of those interested in the estate of the bankrupt.” Hobbs v. Frazier, supra. Whatever is necessary to fully protect the rights of those interested in the estate of the bankrupt is not concluded by the adjudication of the bankrupt court that the trustees in bankruptcy will get more money for the bankrupt ’s interest if it is partitioned than they will if the interest is sold as an undivided one. It may be readily conceded that in any case a threat of partition with its attendant costs would make the mdsance value of the bankrupt’s undivided interest materially rise in value from the standpoint of what might be realized from its forced sale, regardless of what it might be worth otherwise. The rights only of the creditors, represented by the trustees, would be subject to protection by partition, if partition is necessary for such protection under the rule referred to in our previous decision. But the right of “protection” thus afforded cannot be enlarged into a right to interfere with and disturb the possession and enjoyment of the property by the other *677 tenants in common, merely because by so doing more returns will be realized for tbe benefit of tbe creditors of tbe bankrupt at the expense of the bankrupt’s innocent co-tenants, than would be realized by selling the undivided interest without partition. There is nothing in the present case to show that if partition is not shortly had a loss to the whole estate by waste or otherwise will be sustained or that a greater burden will be east upon the trustees in bankruptcy in holding the property pending its sale, than would otherwise be the result, such as would be caused by the nonpayment of taxes assessed against the lands as a whole, thereby forcing all of such taxes to be paid by the trustees in bankruptcy in order to protect the ownership as a whole, instead of paying a proportionate part to protect the bankrupt’s interest only, nor is there shown any other similar circumstances evidencing an absolute necessity for partition as a means of protection. So without finally foreclosing our views on the question of whether or not there are any circumstances under which a trustee in bankruptcy can maintain a partition suit against co-tenants of the bankrupt', a majority of this Court hold the bill of complaint in the present ease not to have been sufficient to show a right of partition as against the defendants who objected to it by their demurrer. And so holding we must affirm the decree of the court below, which, after sustaining the defendants’ demurrers, dismissed the bill. Decree affirmed. Whitfield, Ellis. Terrell, Brown and Davis, J.J., concur. Buford, C.J., dissents.