West Virginia Record

Saturday, April 4, 2020

Court rules partnership, not partners, own property

By Steve Korris | Nov 17, 2006

CHARLESTON – Where a partnership owns property the partners themselves own nothing, the West Virginia Supreme Court of Appeals has declared.

The five Justices agreed Nov. 14 that Lowell Cogar could not redeem a title to 14 acres that he and his partner owned in Raleigh County.

The Justices reversed Raleigh County Circuit Judge Robert Burnside Jr., who had ruled in Cogar's favor.

The Justices directed Burnside to honor the title of Lee Lafferty, who bought the property after Cogar and his partner failed to pay taxes on it.

Cogar and Jerry Whitt owned the property, on Old Grandview Road, through a partnership they called Whitco.

The county sheriff sold it to Lafferty in 2002, for $1,500.

Lafferty prepared notices of the right to redeem the property and sent the notices to the Whitco partnership, to Cogar and to Whitt.

Lafferty provided addresses for Whitco and Whitt, but not for Cogar.

No one claimed the notices, so the county clerk published them for three successive weeks.

The time to redeem expired and the clerk issued a deed to Lafferty.

Lafferty built a road on the property, at a cost of about $2,500.

In 2004 Cogar sued Lafferty. He asserted that notice by publication was not sufficient because Lafferty could have found his address in a telephone directory.

In 2005 Burnside ruled that Cogar as a partner had a right to pay the taxes. He ruled that since the clerk failed to give notice to Cogar, the tax deed was void.

Burnside said Cogar would have to reimburse Lafferty for the road he built. Burnside said he would hold a hearing to determine the value of the road.

Lafferty appealed. William Richmond Jr., of Beckley, represented him before the Supreme Court of Appeals.

William Stover of Beckley represented Cogar.

Justice Spike Maynard wrote for the Court that Cogar was not an owner and did not have an interest in the property independent of the partnership.

Maynard quoted state law that, "A partnership is an entity distinct from its partners."

He quoted state law that, "Property acquired by a partnership is property of the partnership and not of the partners individually."

He quoted state law that, "A partner is not a coowner of partnership property and has no interest in partnership property which can be transferred, either voluntarily or involuntarily."

Maynard wrote, "Clearly, notice of the right to redeem was served upon the partnership. The partnership failed to redeem the property. Therefore, the deed issued to Mr. Lafferty was valid."

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West Virginia Supreme Court of Appeals