BEFORE WALKER, SULLIVAN & PRATHER
PRATHER, JUSTICE, FOR THE COURT:
This appeal in a partition of realty suit addresses in part the affirmative defense of hardship and fraudulent acquisition of titles. The judgment from the Chancery Court of Forrest County, Mississippi orders the partition by public sale of real property consisting of a lot and a house jointly owned by Clista Merritt Daughtrey, appellant/defendant, and William Donald Daughtrey, appellee/plaintiff. Preliminary to a hearing on the merits, counsel for Mr. Daughtrey made a motion to strike two affirmative defenses set forth in Mrs. Daughtrey's answer, which defenses were hardship and fraudulent acquisition of title and duress. The court sustained these motions to strike on the ground that as a matter of law hardship was not a proper defense to the right of partition and that any suit alleging undue influence or
fraud was barred by the statute of limitations. At trial, the court denied the third affirmative defense set forth in Ms. Daughtrey's answer that in the event partition was granted, Ms. Daughtrey should be allowed to purchase Mr. Daughtrey's interest in said property under terms and conditions which she could afford. Ms. Daughtrey assigns the following as error on appeal:
(1) The decision of the chancellor to grant, without a hearing on the merits, the plaintiff's motion to strike the defendant's affirmative defense of hardship and oppression was reversible error;
(2) The decision of the chancellor to grant, without a hearing on the merits, the plaintiff's motion to strike the defendant's second affirmative defense, which defense challenged the plaintiff's title to the property in question, was reversible error;
(3) The decision of the chancellor to deny the defendant's third affirmative defense, which requested that the defendant be allowed to purchase the property from the plaintiff under terms and conditions which she could afford, was reversible error on the record before the court.
Mr. and Mrs. Daughtrey were married in 1954 and lived in a house belonging solely to Mrs. Daughtrey. Mrs. Daughtrey alleged that in 1957, Mr. Daughtrey forced her to sell that home to purchase another piece of property in which he would have a one-half interest, by constantly badgering her and knocking her about until she consented to put his name on the deed. In 1964 they traded this property for the property at 300 Griffith Street, the property subject to this suit. The Daughtreys were divorced in 1979, and Mrs. Daughtrey was awarded exclusive use and possession of the property until their child was emancipated. The court specifically found that Mrs. Daughtrey was not entitled to any alimony and that the award of use and possession of the property was in the nature of child support until the minor child of the parties was emancipated, a condition which has occurred. Mrs. Daughtrey alleges she is in poor health, capable of only part-time work, with only $800 in her bank account, and unable financially to purchase her home at a public sale. A psychiatrist testified after one examination of Mrs. Daughtrey that she was suffering from a" very depressive reaction ", that she was" schizophrenic, "that" to force Mrs. Daughtrey to move would put her in danger because her adjustment is very fragile and that an increase in Mrs. Daughtrey's depression increases
the potential for suicide. "A cousin and employer of Mrs. Daughtrey testified that if Mrs. Daughtrey moved out of her home" she'd probably have her a nervous crackup or something ".
The property in question consists of a four bedroom brick veneer home located on a 100 by 150 foot lot with a 16 by 32 swimming pool.
Was it reversible error for the chancellor to grant Mrs. Daughtrey's motion to strike Mrs. Daughtrey's affirmative defense of hardship and oppression?
The statutes controlling partition are found in Miss. Code Ann. 11-21-1 et seq. Miss. Code Ann. 11-21-3 in pertinent portion provides:
Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated. . . .
and Miss. Code Ann. 11-21-11, in pertinent part, provides:
If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a ...