Stephens v. Claridy, [Ms. 1200006, June 30, 2021] __ So. 3d __ (Ala. 2021). The Court (Sellers, J.; Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Parker, C.J., dissents) affirms a judgment of the Madison Circuit Court entered after an ore tenus hearing that property owned by tenants in common could not be partitioned in kind but was instead required to be partitioned by sale pursuant to the provisions of the Alabama Uniform Partition of Heirs Property Act (“the Heirs Act”), § 35-6A-1, et seq. Reviewing the pertinent provisions of the Heirs Act, the Court notes that § 35-6A-2(5) provides a court can, after determining the fair market value of the property, order the division of the heirs’ property by partition in kind or by sale. Ms. *2. The Act presumes that a partition in kind can be ordered unless such a partition would “result in great prejudice to the co-tenants.” Ms. *3, quoting § 35-6A-8(a).
Here, relying upon the presumption of correctness afforded ore tenus proceedings, the Court concludes the circuit court did not err in ordering the property to be partitioned by sale. “A trial court’s finding that land cannot be equitably partitioned is entitled to a presumption of correctness and will be overturned only if plainly or palpably erroneous.” Ms. *12, quoting Black v. Stimpson, 602 So. 2d 368, 370 (Ala. 1992).