## Facts

- A quarter section (160 acres) of farmland was owned in undivided shares by a widow and her three children from her first marriage as tenants in common.
- The widow later remarried and, with her second husband, continued operating the farm as a household enterprise with the children participating in farm work and income.
- During the second marriage, substantial improvements were made to the farm (including major building and remodeling work) costing more than $9,000.
- After the widow’s death, her interest passed partly to the second husband and partly to their two sons, creating multiple cotenants with fractional interests.
- The children from the first marriage sought partition, alleging the tract could not be fairly partitioned in kind and requesting a sale of the whole property with proceeds distributed by ownership shares.
- The second husband and his sons did not materially contest sale, but sought an equitable allowance from the sale proceeds for the improvements they claimed to have financed.

## Issues

1. Whether the property could be ordered sold in a partition action, rather than partitioned in kind, because in-kind division would cause “great prejudice” to the owners.
2. Whether cotenants who made substantial improvements were entitled to an equitable allowance from partition-sale proceeds beyond their proportional ownership shares.

## Decision

- The Supreme Court of South Dakota affirmed the order directing partition by sale of the entire tract.
- The Court held that “great prejudice” was shown where partition in kind would materially reduce the value of each cotenant’s share compared to the money obtainable from sale of the whole.
- The Court affirmed denial of a separate allowance for improvements, concluding that awarding extra compensation to the improving cotenants would be inequitable under the circumstances.
- The judgment was affirmed in full: sale as one unit and distribution of proceeds according to recorded fractional interests, without an additional improvement credit.

## Legal Principles

- A court may order partition by sale when the property cannot be partitioned in kind without great prejudice to the owners.
- “Great prejudice” exists when the value of each cotenant’s share after physical division would be materially less than the share of the proceeds likely obtained by selling the property as a whole.
- When statutory conditions for sale are met, partition by sale is available as of right; the party seeking sale bears the burden of proving those conditions.
- An equitable allowance for improvements in partition is not automatic; it depends on the overall equities, including shared contributions, benefits received, and whether an added award would unfairly shift value among cotenants.
- A court may deny an improvement allowance when the improving cotenant will already receive a proportional share of the increased sale value and additional compensation would be inequitable.

## Conclusion

The court approved partition by sale because an in-kind division would materially diminish the economic value of each cotenant’s share, and it refused to grant the improving cotenants an added allowance where the improvements arose from a shared family farming operation and any increased value would be reflected in the sale proceeds distributed by existing ownership interests.


Johnson v. Hendrickson, 71 S.D. 392, 24 N.W.2d 914 (S.D. 1946)