## Facts

- George Wimer died owning multiple tracts of real property that lay partly in Virginia and partly in West Virginia.
- His heirs succeeded to the property as tenants in common, each holding an undivided interest.
- One heir filed a suit in a Virginia court of equity seeking partition of all the tracts, including those situated in West Virginia.
- Defendants objected by demurrer, asserting that a Virginia court lacked authority to partition land outside Virginia.
- The trial court overruled the objection and entered a decree awarding partition and appointing commissioners to divide the property, including the West Virginia tracts.
- An objecting heir appealed from the partition decree, challenging the Virginia court’s power to proceed as to the West Virginia land.

## Issues

1. Does a Virginia court of equity have jurisdiction in a partition suit to decree partition of, and appoint commissioners to divide, real property located in another state?
2. If all heirs are before the Virginia court, can that court’s decree nevertheless operate to divide and affect title to out-of-state land?

## Decision

- The Supreme Court of Appeals of Virginia held that a Virginia court lacks jurisdiction to decree partition of land situated in another state.
- The decree was erroneous to the extent it ordered partition of the West Virginia tracts and appointed commissioners to act there.
- The court allowed the proceeding to stand only as to property located within Virginia, where the court had territorial authority.

## Legal Principles

- Partition of real property is a local proceeding tied to the situs of the land; a court cannot directly divide land beyond the state’s borders by its own decree.
- A decree that attempts to partition out-of-state land is not effective as an in rem act upon that land, because the court has no power over the res outside its territory.
- The usual machinery of equitable partition—appointing commissioners to enter, survey, and divide the land—cannot be carried into another sovereign; commissioners appointed by a Virginia court would have no lawful authority on West Virginia land.
- Personal jurisdiction over the heirs does not supply subject-matter jurisdiction to enter a partition decree that directly operates on land in another state.
- Any remedy concerning out-of-state land must be pursued in the courts of the state where the land lies, at least insofar as the relief sought is an actual partition that changes the status of the land and the parties’ titles.

## Conclusion

Wimer v. Wimer holds that Virginia equity courts may partition only land within Virginia and may not decree or execute partition of tracts located in another state; the attempted partition of the West Virginia property exceeded the court’s authority and could not stand.


Wimer v. Wimer, 82 Va. 890 (1888)