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Law School Case Brief

Eli v. Eli - 1997 S.D. 1, 557 N.W.2d 405


Monetary considerations, while admittedly significant, do not rise to the level of excluding all other appropriate considerations. S.D. Codified Laws §§ 21-45-1 and 21-45-28 speak of great prejudice, not great financial prejudice. The sale of property without the owner's consent is an extreme exercise of power warranted only in clear cases. This especially so when the land in question has descended from generation to generation. One's land possesses more than mere economic utility; it means the full range of the benefit the parties may be expected to derive from their ownership of their respective shares. Such value must be weighed for its effect upon all parties involved, not just those advocating a sale. Sale instead of partition should not be done except in cases of imperious necessity it is no objection to a partition in kind that some of the cotenants prefer a sale to a partition. To this extent, the previous monetary definition of great prejudice as found in Johnson is modified to include consideration of the totality of the circumstances.


Two brothers, Chester and James Eli, and a sister, Jody Eli, owned certain farmland property as cotenants. Pursuant to a partition action brought by plaintiff brothers, the Circuit Court of the Fourth Judicial Circuit, Turner County (South Dakota) ordered a sale of this property at a public auction pursuant to S.D. Codified Laws §§ 21-45-121-45-28. The trial court concluded that the sale of the farm would bring a better price if sold as a whole than it would if sold as separate parcels. The sister appealed.


Did the trial court err in ordering the sale of the property?




The appellate court reversed and remanded the trial court's decision. Under S.D. Codified Laws § 21-45-28, sale was appropriate in a partition action if the property was situated such that partition could not be made without great prejudice to the owners. In its decision, the court noted that forced sales were strongly disfavored at law and that the burden of proof to establish great prejudice under § 21-45-28 rested upon the party seeking the sale. The court decided that within the context of § 21-45-28, the great prejudice standard incorporated the totality of the circumstances, including the financial abilities of the parties to repurchase the land through the sale, the location of the property, the use of the property before and after the sale, and the sentimental value attached to the property.

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