dissenting:
I respectfully dissent. While the Zimmermans’ conduct may properly be characterized as acquisitive, they have done nothing illegal.
A joint tenant may compel partition. S.C.Code Ann. § 15-61-10 (2005). A court may order partition in kind, that is, divide the property among all the owners, or by allotment, that is, to “allot” a portion of the property to one of the owners, with the remainder held jointly by the other owners or sold with the proceeds divided among the owners,3 or by judicial sale of the entire parcel. S.C.Code Ann. § 15-61-50 (2005). The circuit court may, in some limited circumstances not present here, allot the property to one of the joint owners and require that individual to pay a sum assessed by partition commissioners to the other owner(s). Rule 71(f), SCRCP4; Carnes v. White, 3 S.C.L. (1 Brev.) 458 (1804)(partition commissioners may make special return: upon payment of sum set by them title vests in payor).
In this case, there is no contention that a partition in kind can be made, there being one house located on one lot. Further, the property is not capable of partition by allotment *390between the parties. The majority in effect orders a private rather than a public sale: this is not a form of partition recognized in this jurisdiction absent a special return by five commissioners acting upon a writ of partition.5 § 15-61-50; compare Fike v. Sharer, 280 Or. 577, 571 P.2d 1252 (1977) (Oregon statute permits partition by private sale between the parties where neither partition in kind nor by public sale can be achieved without great prejudice to the owners).
I am not averse to permitting consideration of sentimental attachment in a partition suit, but I would limit its use as have other jurisdictions; sentimental value may tip the balance in favor of a partition in kind rather than by public sale even where a sale would generate a somewhat more favorable financial outcome for the parties. See Ark Land Co. v. Harper, 215 W.Va. 331, 599 S.E.2d 754 (2004) (where commercial entity becomes co-owner with expectation it can make money off the land from its business venture, court will not permit this self-created value enhancement to be determinative factor in forcing sale; partition in kind ordered even though business suffered some “economic inconvenience”); Schnell v. Schnell, 346 N.W.2d 713 (N.D.1984)(partition in kind rather than sale ordered where divorced parties were dividing a sizable ranch); Pioneer Mill Co., Ltd. v. Ward, 37 Haw. 74 (Hawai’i Terr.1945) (partition in kind even though topography made it difficult; sentimentality rule recited but not applied); Anderson v. Anderson, 27 Ga.App. 513, 108 S.E. 907 (1921) (sentimentality weighs in favor of in kind partition but pecuniary factors are determinative in deciding between in kind partition and judicial sale).
No one contends that an in kind distribution or allotment is feasible here, and thus we do not reach the issue of the weight to be given Ms. Marsh’s emotional ties to the property in deciding the mode of partition to be employed. A public sale is the only method of partition available, and the Zimmermans are within their legal rights in demanding one be held. § 15-61-10. I would not alter the law of partition to favor a joint owner perceived as more worthy, and therefore would affirm *391the decision of the Court of Appeals which itself affirmed the master’s order.
BURNETT, J., concurs.. See, e.g., New v. Few, 242 S.C. 433, 131 S.E.2d 248 (1963); Bennett v. Floyd, 237 S.C. 64, 115 S.E.2d 659 (1960).
. The majority characterizes its relief as a partition by allotment pursuant to Rule 71(f)(4), SCRCP. I have reviewed the record and have found neither a writ of partition nor a return from the commissioners. Absent compliance with the requirements of this rule, a court may order only a partition in kind or a public sale. S.C.Code Ann. § 15-61-100(2005); Rule 71(f)(5), SCRCP.
. I note further that a party not allotted the property by the commissioners may force a public sale by "making and securing a bid for a material advance in price over the value assessed by the Commissioners.” Moore v. Williamson, 31 S.C. Eq.(10 Rich. Eq.) 323 (1858).