Divide-and-Conquer Land Laws Hurt Blacks

Lawyers and real estate traders are stripping Americans of their ancestral land today, simply by following the law.

It is done through a court procedure that is intended to resolve land disputes but is being used to pry land from people who do not want to sell.

Black families are especially vulnerable. The Becketts, for example, lost a 335-acre farm in Jasper County, S.C., that had been in their family since 1873. And the Sanders clan recently lost 300 acres in Pickens County, Ala., that had been in the family since 1919.

The procedure is called partitioning, and this is how it works:

Whenever a landowner dies without a will, the heirs inherit the estate in common, with no one person owning a specific part. If more family members die without wills, things can get messy within a couple of generations, with dozens of relatives owning the land in common.

Anyone can buy an interest in one of these family estates; all it takes is a single heir willing to sell. And anyone who owns a share, no matter how small, can go to a judge and request that the entire property be sold at auction.

Some land traders seek out such estates and buy small shares with the intention of forcing auctions. Family members seldom have enough money to compete, even when the high bid is less than market value.

“Imagine buying one share of Coca-Cola and being able to go to court and demand a sale of the entire company,” said Thomas Mitchell, a University of Wisconsin expert on partitioning. “That’s what’s going on here.”

This can happen to anyone who owns land in common with others; laws allowing partition sales exist in every state.

However, government and university studies show black landowners in the South are especially vulnerable because as many as 83% of them do not leave wills.

Blacks have lost 80% of the 5.5 million acres of farmland they owned in the South 32 years ago, according to the U.S. Agricultural Census. Partition sales account for half of those losses, according to land experts such as Jerry Pennick, regional coordinator for the Federation of Southern Cooperatives.

A judge is not required to order a partition sale just because someone requests it. When the property is large enough for each owner to be given a useful parcel, it can be fairly divided. When those who want to keep the land outnumber those who want to sell, the court can help the majority arrange to buy out the minority.

But when partition sales are requested, judges nearly always order them, government and university studies show,

“Judges order partition sales because it’s easy,” said Jesse Dukeminier, an emeritus professor of law at UCLA. Appraising and dividing property takes time and effort, he said.

Partition statutes exist for a reason: to help families resolve impossible tangles that can develop when land is passed down through several generations without wills.

But the process doesn’t always work as intended. Land traders who buy shares of estates with the intention of forcing partition sales are abusing the law, declared a 1985 study done for the Commerce Department by the Emergency Land Fund, a nonprofit group that helped Southern blacks retain threatened land in the 1970s and ‘80s.

The practice is legal but “clearly unscrupulous,” the study declared.

Legal fees for bringing partition actions can be high--often 20% of the proceeds from the land sales. Families, in effect, end up paying the fees of the lawyers who separate them from their land.

Moreover, black landowners cannot always count on their own lawyers. Sometimes, the Commerce Department study found, attorneys representing blacks filed partition actions that were against their clients’ interests.

The Associated Press studied 14 partition cases in detail, reviewing lawsuit files and interviewing participants. The cases stretched across Southern and border states.

Each case was different, each complicated, with some taking years to resolve. But in nearly every case, land traders bought small shares of black family estates, sometimes from heirs who were elderly or mentally disabled, and then sought partition sales.

All 14 estates were acquired from black families by whites or corporations, usually at bargain prices.

Some families have hired attorneys and tried to fight back. However, said Mitchell, the Wisconsin law professor, “the families nearly always lost.”

In the 1990s, a South Carolina real estate trader named Audrey Moffitt sought a 335-acre estate in Jasper County, S.C., that had been owned by the Beckett family since 1873.

Frances Beckett, a 74-year-old widow with a fourth-grade education, was one of 76 heirs to the estate. According to court papers, she was bedridden with terminal cancer.

The dying woman accepted Moffitt’s offer of $750 for her 1/72nd interest--worth $4,653, according to a subsequent appraisal by a real estate consultant. An appeals court would later call it the only “true” appraisal of the property.

Moffitt then bought out six other heirs for a total of $6,600, court papers show. Among them, she paid Edward Stewart, 88, a man with no formal education, and Flemon Woods, 80, with a third-grade education, a combined $5,800 for their one-sixth interest. It was worth $55,833, according to the subsequent appraisal.

Moffitt filed her partition action in January 1991. Beckett family members countersued, alleging Moffitt had secured the elderly heirs’ signatures improperly. A special referee in the Court of Common Pleas ruled that the estate should be sold.

The property was broken into two pieces that were auctioned separately. Fifty acres were purchased by a real estate broker for $75,000 at a December 1991 sale. Of this, $12,864 went to Moffitt for her shares and nearly $20,000 was taken for court costs, leaving $42,331 for the family. Today, the 50 acres are assessed at $200,000.

Moffitt bought the remaining 285 acres for $146,000 in February 1992. (That included $24,338 she paid to herself for her own shares.)

Two years later, however, an appeals court ruled that the signatures of the elderly Beckett heirs were obtained illegally and called Beckett’s dealings with them “unconscionable.”

When Moffitt paid an additional $45,075 for the shares, however, the court validated the partition sale.

With the additional payment, Moffitt’s outlay for the land totaled $198,425, court papers show. Deduct the $37,202 she received from the partition sales for her own shares of the estate, and her true outlay was $161,223.

Moffitt has since broken up the property and resold it to a locally prominent family and several area businesses, records show. In one transaction, she swapped part of the old Beckett land for adjoining property, which she then sold.

Her proceeds from these sales, property records show, total $1,708,117--nearly 11 times what she paid.

“They basically just ran these people out,” said Bernard Wilburn, an Ohio lawyer who represented several Beckett heirs.

This wasn’t the only time the Becketts encountered Moffitt.

In 1991, she paid heirs on another side of the family $2,775 for a one-fifth interest in 50 acres of undeveloped land along State Highway 170 in Beaufort County, S.C.--the main link between Savannah, Ga., and the resort island of Hilton Head. The following year, Moffitt filed for partition, forcing the 42 heirs into court.

The family knew what was coming because of what was happening to their relatives, so they negotiated a settlement. They allowed Moffitt to pick out the best 10.4 acres of the estate in return for dropping the partition action.

Moffitt didn’t keep the land long. Records show that in October 1998 the state paid her $17,000 for a roadway easement of less than an acre. In January 1999, she sold the rest to a Methodist church for $200,000.

In all, she received $217,000 for land she had purchased for $2,775.

Moffitt, of Varnville, S.C., did not return phone calls but replied in writing to a letter requesting comment. She defended the dealings described as “unconscionable” by the court, calling her payments to the elderly Becketts “fair value.”

She characterized the Beckett ownership as “a convoluted mess” that made the land unmarketable. She added: “The heirs could have done for themselves what I did, but for generations had not done so. It is difficult sometimes to get two people to agree; getting 30 or 40 or more people all to agree to sell or keep and use their property would be virtually impossible, in my experience.”

M.L. Wheat of Millport, Ala., wanted to buy 300 acres of Pickens County, Ala., timberland, which had been in the Sanders family for 83 years. In early 1996, he talked price with one of the owners, Ivene Sanders. They met in the office of Wheat’s lawyer, William D. King IV.

When Wheat learned that buying the land would require reaching agreement with about 100 heirs, he backed away from the deal.

Then, in May of that year, the story took a turn.

King, who had represented Wheat, filed a partition action on behalf of 35 members of the Sanders family, naming other heirs as defendants.

Only two family members signed the complaint seeking the sale: Ivene Sanders, now 72, with a fourth-grade education, and his cousin, Archie Sanders, now 75, with a third-grade education. Court papers show both later insisted they did not understand what they were signing.

Ivene Sanders told the AP he thought he was authorizing King only to determine the size of each family member’s share.

Several family members King listed as plaintiffs turned out not to own shares. All but five of the plaintiffs who did own shares joined Ivene and Archie Sanders in filing papers stating that they had not authorized King to pursue the partition action.

Several hired another lawyer to try to stop the sale.

The AP could find nothing in the record indicating the wishes of the other five plaintiffs. One, Emma Jeann Sanders, told the AP she had never hired King. Another, Lillie Velma Gregory, was too ill to be interviewed, but her daughter, Fentris Miller Hayes, said her mother had not hired King. Another is now dead. The other two could not be located.

Whose interest was King representing as he pursued the partition action? King would not comment beyond saying that the record speaks for itself.

As the case went on, the number of family members being sued to force the sale reached 78. Of these,18 did not object to the sale, according to the judge. In fact, in the case’s final year, the judge decided that seven of them were no longer defendants, but plaintiffs.

Five of those seven then filed objections to the sale too.

Family members who took a position on the sale--plaintiffs and defendants alike--were overwhelmingly opposed, court records show. Some said they never wanted the family land sold. Others, including Ivene and Archie Sanders, said that if they were to sell, they would want to do so privately rather than risk a low winning bid at a court-ordered auction.

Nevertheless, Circuit Court Judge James Moore ordered an auction. The Melrose Timber Co. Inc., bought property on Nov. 24, 1998, for $505,000, court papers show.

It was not a bad price, but the family did not get all the money. King collected $104,730 in fees and expenses--about 20% of the sale proceeds. After court costs were deducted, $389,170 remained to be divided among 96 heirs, some of whom incurred legal fees fighting the sale.

Some family members wanted to appeal but decided they could not afford the legal fees, said Ivene Sanders’ niece, Eldessa Johnson, 50, of Southfield, Mich.

King, reached at his office in Carrollton, Ala., said: “I have no additional comments, other than what is in the record. . . . I have nothing to hide. This case has been well litigated.”

Moore said partitioning laws, intended to protect landowners, are often used against them and may need revision. However, he said, once the partition request was filed, he approved it largely as a matter of routine.

In his three-county rural circuit, he said, two or three such cases are going on all the time. Most, he said, involve black families.

Associated Press writer Allen G. Breed and investigative researcher Randy Herschaft contributed to this report.

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This is the conclusion of “Torn From the Land,” a three-part weekly series documenting how black Americans lost family land over the last 160 years. A Web presentation of this series, including documents, longer versions of the stories and additional reports, can be found at the AP’s “The Wire” Web site: wire.ap.org