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B. Af., 672); nor to prevent an inferior tribunal from deciding erroneously, or from en
forcing an erroneous judgment, in a case of whieh it has jurisdiction (5 Dana, 21; 1
B. Af., 197; 3 Bush, 693; 81 Ky., 613); nor against a legislative body, such as a cit;
council (14 Bush, 324), unless authorized by a special statute ( Talbot v. Dent, 9 B. Af.
526) ; and where .the charter of a city declared that the validity of its ordinances migh
•' be determined by a writ of prohibition," it was held that the mayor's court could not b
restrained by such writ from making an illegal use of powers granted by a valid ordinance
but that the party's remedy was an action in equity. Shinkle v. City of Covington, 8,
Ky., 420.

And it has been held that, though an inferior court may be restrained by a writ of pre
hibition from enforcing an unconstitutional statute on which its jurisdiction depends; yet
if it has jurisdiction of the subject of the action under a valid statute, as, of demands fo
money not exceeding fifty dollars, it can not be restrained by a writ of prohibition fror
rendering a judgment for fifty dollars, though the demand sued on may have been create
by an unconstitutional statute ; the defendant's remedy being an appeal. Arnold v. Shields
5 Dana, 18; Pennington v. Wool fork, 79 Ky., 13.

And the circuit court may restrain an inferior court from proceeding, not only in case
of which the circuit court has exclusive jurisdiction, but in cases of which no court ha
jurisdiction (5 Dana, 20) ; and in the latter case no appeal lies from the inferior court t<
the Court of Appeals. 4 Bibb, 268.



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REPEALING OR VACA11NG CHARTERS, ETC. 355

>licant for a writ of prohibition must allege in his petition that he had objected
ction of the inferior court, if. that court might have acquired jurisdiction by
raiver of jurisdiction, or by default: atiter, if the statute giving jurisdiction be
mal. As to parties : several persons, against whom several warrants are issued
join in an application to restrain proceedings in all the cases, either before or
at ; and the magistrate who issued and the party who procured the warrants
d as defendants. 5 Dana % 26.

CHAPTER XIIL

>R VACATING CHARTERS, AND PREVENTING THE USURPATION OF AN OFFICE
OR FRANCHISE.

tion, ordinary, may be brought for.
to repeal charter, how brought,
what to be brought only by order of legislature,
who may bring to prevent usurpation,
what to be brought by attorney for Commonwealth.

Attorney-General,
for usurpation, what authorizes,
irper, judgment against.

fees of, provision concerning.

529]. Ordinary action lies. — In lieu of the writs of scire facias
arranto, or of any information in the nature of a quo warranto^
ctions may be brought to vacate or repeal charters, and to
e HSU r patron of an office or franchise.

530] Actions to repeal or vacate charters, Jww brought. — The ac-
>eal or vacate a charter shall be in the name of the Common-
d be brought and prosecuted by the Attorney-General, or
sanction and direction by an attorney for the Commonwealth.
531]. What actions must be authorized by the legislature. — Ac-
peal or vacate the charters of municipal corporations ; banks ;
jrnpike road, and internal improvement companies, shall only
ed by order of the legislature, unless otherwise expressly pro-

5 of a corporation to comply with any requirement or provision of its charter,
s duty of the Attorney-General of the State to institute such proceedings as
sr and necessary to have forfeited and revoked the charter, powers, franchises,
s of such corporation. See Act 1894, page 53.

532]. Who ?nay sue to prevent usurpation of office or franchise.
1 usurp an office or franchise, the person entitled thereto, or
onwealth, may prevent the usurpation by an ordinary action.

is to prevent usurpation of office.

is by the Commonwealth.

merly, a writ of quo warranto^ which was necessarily in the name of the Com*

>nly questioned the incumbent's right, and was not a remedy for establishing

mother (3 J. J. Af., 406 ; 13 B. Jlf. t 518) ; and it seems clear that such is the

> the effect of an action by the Commonwealth. See Code, \ 487.



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PROCEEDINGS IN CERTAIN ACTIONS. [TITLE

tion the Commonwealth can not recover a fine for the usurpation,
overy of fees received by the usurper, see \ 488.

an, an appointment by the Governor [if he have power under any c
1 an appointment] will be presumed to have been rightly made till t

and proved. 4 A/on., 516.

>ns of the Code do not preclude an inquiry into the incumbents' title
on against him for a wrong done under color of such title. 2 Met., 49
imants of office.

f must, as in all other actions, show himself entitled to that which :
. Harris, 85 Ky., 464.

xy of fees and emoluments received by the usurper, see J 488.
event usurpations of franchises.

is "a particular privilege conferred by grant from government ai
als" (13 Bush, 189), such as a ferry-right, or the right to erect a to
1 lottery; and an action for usurpation of it — as by erecting a toll-ga
rom the legislature, or by operating an exhausted lottery — can be mai

Commonwealth. Commonwealth v. Lexington & Harrodsburg T. a
Same v. City of Frankfort, &V., 13 Busk, 185.

isurpations of franchises, see 16 B. M., 779; 81 Ky., 263; 85 Id., 24
by the Commonwealth against vendees' of a lottery, which is alleged
d, the vendors are not necessary parties. 13 Bush, 188.

What actions Commonwealth's attorneys must proseaiL
luty of the several Commonwealth attorneys to institut
itioned in this chapter against usurpers of county office
no other person be entitled thereto, or if the person ei
itute the same during three months after the usurpatioi

What actions the Attorney General must prosecute. — Fc
ther than county offices or franchises, the action by th

shall be instituted and prosecuted by the .Attorne

Holding office of ter forfeiture is usurpation. — A perso
to exercise an office after having committed an act, c
an act, the commission or omission of which, by law
ture of his office, may be proceeded against for usui

fudgment against usurper. — A person adjudged to hav
:e or franchise shall be deprived thereof by the judgmen
d the person adjudged entitled thereto shall be place*
lereof; but no one shall be adjudged entitled thereto
1 be instituted by him. And the court shall have powe
dgment by causing the books and papers, and all othe
ig to the office or franchise, to be surrendered by th
y preventing him from further exercising or using th<
y enforce its orders by fine and imprisonment unti



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REAL PROPERTY OF PERSONS UNDER DISABILITY, ETC. 357



J 37]. Provisions as to fees of usurper. — If the usurper have
es and emoluments arising from the office or franchise, he
ible therefor to the person entitled thereto, who may claim
n the action brought to deprive him of the office or fran-
1 a separate action. If no one be entitled to them, they
covered by the Commonwealth, and shall be" paid into the
sury.



CHAPTER XIV.*

SALES OF REAL PROPERTY OF PERSONS UNDER DISABILITY, *C

ARTICLE I.

For what purposes real property of infants and persons of unsound mind

may be sold.
When real property of joint owners may be sold.
When reversion or remainder may be sold.
Requirements as to sales under $$489, 491.
Bond, when and by whom to be given.

how to be approved and recorded.

if not given, sale void.
Infant married woman must consent to sale.

3. Provisions concerning conveyance of property.

4. investment of proceeds.

5. preservation and disbursement of proceeds.

6. death of owner before investment.

7. share of joint owner.

8. When consent of trustee necessary.
Concerning compensation for dower.
When bond, &c, dispensed with.

Sale without consent of joint owner whose share is worth over $100.
When purchase-money to remain lien on land until disabilities removed,

&c.
Who may join in action for sale and investment.

for sales of property, under this article, except for debts of a decedent, must be brought
which the property, or some part thereof, is situated. Code, g 62 ; 2 Bush, 49 ; 6 Id. t 8.

1813 ( M. £• B. t 806) and an act of 1836 (3 S. L. t 271), authorizing sales of lands of infants
t, were substituted by chapter 86 of the Revised Statutes; which was substituted by
e General Statutes and by Title 10, chapter 15, of the Code of 1854; which were substi-
i, chapter 14, of the present Code.

ti3 authorized, but did not require, the appointment of commissioners to report as to value
. ; but chapter 86 of the Revised Statutes not only required the appointment of such com-
ieclared that they must report "before a court shall have jurisdiction to decree a sale of

For decisions as to the effect of that provision, see 16 B. M. t 296 ; 18 /</., 390, 781 ; a Met.,

/<£, 40, 6a, 197 ; 6 Bush, 498.
>f the General Statutes required the appointment of, and a report by, such commissioners,

shall order a sale," but did not make the jurisdiction of the court depend thereon (13
st the present Code dispenses with such commissioners.
ner and present statutes, as to the giving of a bond by the guardian, &c, see § 493, and



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35$ PROCEEDINGS IN CERTAIN ACTIONS, [TITLE



§ 489. Sales of real property of infants and persons of unsound min
A vested estate of an infant or of a person of unsound mind, in n
property, may be sold by order of a court of equity —

1. For the payment of any debt or liability of his ancestor or devis
with which he may be legally chargeable, in an action brought agaii
him pursuant to § 428 ; or in an action brought against him by
creditor of the ancestor or devisor, unless it be enjoined pursuant
§426 [436] (a).

2. For the payment of his debt or liability, in an action broug
against him by his creditor (£).

3. In an action by a guardian against his ward, for a sale of the esta
for the maintenance and education of the ward (c).

4. In an action by a committee of a person of unsound mind agair
him, for a sale of- the estate for his maintenance, or for the mai
tenance of himself and his family, including the education of his info
children (d).

5. In an action against a person of unsound mind by his committe
or against an infant by his guardian ; or, if the infant be a marri
woman, by her husband, if he be twenty-one years of age, if not, 1
her next friend, for a sale of the estate and investment in other pre
erty (e).

(a) In Gill v. Givin's admW, 4 Met., 197, it was held that although, under {466 (n
{429) of the Code, so much of an infant's land may be sold as may be necessary for 1
payment of his ancestor's debts ; yet, that a sale of more than was necessary for that p
pose was void because the provisions of chapter 86 of the Revised Statutes had not b<
•complied with. Does \ 694, subs. 2, of the present Code dispense with the provisions
{493, as to the sale of an infant's land for debts of his ancestor or devisor, the amount
which is less than the value of the land ?

(b) A creditor of a lunatic can subject his property, though he and his family n
thereby be deprived of the means of support (14 Bush, 708) ; but, if there be sev*
creditors and the estate be insolvent, the proceeds shall be paid to the creditors pro re
G. S., eh. 53, art. 2, §25.

(e) As to selling a ward's estate for his support and education, see Chaplttu v. Moon
Mon., 150; Chaplin v. Simmons, Id., 337; Bybee v. Tharp, 4 B. M., 313; Alsop*s credit
v. Barbee & wife, 14 Id., $zz\ Walker & Green v. Brown, 3 Bush, 686; Jarrett v. Andre,
7 Id., 311 ; Cox 1 s guardian v. Storts, 14 Id., 502; Campbell v. Golden, 79 Ky., 544.

{d) See Stone, committee, v. Cromie, 87 Ky., 173, in which a sale ol a lunatic's esta
procured by his committee, was set aside for fraud.

(e) The power of a court of equity, in this State, to order a sale of the real estate c
person under disability, is purely statutory. 13 Bush, 725 ; 80 A3'., 627.

§ 490 [542, 543].* When real property, of joint owners . may be sol
A vested estate (a) in real property jointly owned (6) by two or mo
persons may be sold by order of a court of equity, in an action broug

* For decisions as to gg 54a and 543 of the Code of 1854, see x Met., 260, 281 ; a Dmv. t 8a ; a Bttsk, 439
Id n 8, 369.



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REAL PROPERTY OF PERSONS UNDER DISABILITY, ETC. 359



of them, though the plaintiff or defendant be of unsound

1 infant (c) —

le share of each owner be worth less than one hundred dol-

le estate be in possession (e) and the property can not be
hout materially impairing its value, or the value of the plain-
* therein (/). ^^

mbraces a vested remainder, if the property is in possession of the owner of apI
estate. Kean v. Tilford, <5rV., 81 Xy., 600. NJowv

i words "jointly owned" embrace tenants in common and in coparcenary. fCjRfl
ids. 28; 81 A>., 605.

owner can not prevent a sale of the entire property by devising his share,
»ition of sale until the devisee shall attain a certain age. 81 Ky. y 602 to 604.
Iby v. Harrison , 84 Xy., 144, it was held —

nder this section, «« the guardian may unquestionably bring this action for
. . without making the ward a defendant ; " and, consequently, that, if the
>ught by an adult, the appearance and answer of «n infant's guardian is all
red, though the infant has not been summoned. Query as to both of those

foreign guardian may act for a non-resident infant, if authorized to do so by
le county court pursuant to chapter 48, art. 2, 1 16, of the General Statutes,
irobably, even without such authority from the county court, a foreign guar-
>ear and answer for his non-resident ward under § 35 of the Code, which
iht action of an infant who resides in a foreign country, and who has a guar-
therein, may be brought by such guardian. Query.

hough evidence of the guardian's appointment and qualification was not Bled
in til after the sale of the property, "still, the fact being established, the
r [the purchaser's] title, which might otherwise have existed, has been to that
and they now have no right to complain on that account."
lere some of the infants owned an adjoining tract, it was held that the court
f in allotting to them their share, so as to adjoin their tract, before ordering
residue. 8 BusA t 334.

16, subs. 2, which authorizes the sale of a joint owner's share "of less probable
e hundred dollars," though another share may be worth more than that sum.
>ssession of a tenant is the possession of the lessor. 81 Ky. y 608.
provisions of J 493, as to the giving of a bond and the privy examination of
sn, do not apply to actions under §490. Kendalls. Briggs> 81 Ay., 119; 84

When a reversion or remainder may be sold or mortgaged for c
— In an equitable action by the owner of a particular estate ^

I in possession, or by his guardian or committee, if he be an ^J
F unsound mind, against the owner of the reversion or remain- " 5
1 he be an infant or of unsound mind, and against the owner
icular estate, if he be an infant or of unsound mind ; or, if
der be contingent, against the person, if in being, in whom it
1 vested, if the contingency had happened before commence-
te action, though he be an infant or of unsound mind, and



§\



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360 PROCEEDINGS IN CERTAIN ACTIONS. [TITLE



against the' owner of\ the particular estate, if he be an infant or c
unsound mind, — real property may be sold for investment of the pr
ceeds in other real property (a).

[Amendments of April 1 $th and April 24, 1882, ttte latter having nun
the former a general act.

jHflV That when lands are held in trust by one person for the life c
another, with remainder over to a class of persons, or to any person n<
ascertained or to be ascertained until the death of the person upc
whose life such estate for life is made to depend, or with power on tl
part of such person for whose life such life-estate is held by the truste
to dispose by a last will and testament, or by an instrument in the natu
of a last will and testament, it shall be competent for the circuit cour

) or courts of like jurisdiction in the county in which such land or a pa
thereof is situate, in an action to which all persons having a present <
vested interest in such land are parties, to direct the trustee to eith
sell or mortgage such land ; but in all actions it must be averred ai
proven to the court that such sale or mortgage would be beneficial
all the parties concerned, and facts showing such benefits must 1
alleged and proven. Any deed or mortgage executed under authorit
or in pursuance of any judgment rendered in any such action, shall 1
held and construed and have the same effect as if executed by evei
person having a vested or contingent interest in or ownership of su<
land, and as if executed by all persons and classes who could take und
the limitations or provisions of said deed, or as devisees under tl
exercise of such power to devise or appoint, and as if every claiman
present or future, under such deed or power, was under no disabili
whatever. The proceeds of the sales authorized by this section shall I
paid into court, and shall be reinvested by the court after first having, 1
appropriate order, provided for the payment of the costs and taxes,
any, in other property to be conveyed and held subject to the sar
limitations and trusts as the land sold was held. The proceeds of ;
mortgages of such lands as are mentioned in this section shall be pa
into court, and shall be appropriated, under the order of the court,
the construction of permanent improvements on the land mortgage*
but before appropriating such money in the construction of such ii
provements, the court shall provide for the payment of all unpaid tax
on said land, and the costs of the action. The court shall require tl
life-tenant, out of the rents, to pay the taxes and insurance on su<
improvements, and the residue of the rents to be paid into court f
disposition by the court until such mortgage debt is fully paid off; ai
such court may provide for semi-annual reports to be made by such HI
tenant; and in the event of the disobedience of any order of sue



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tEAL PROPERTY OF PERSONS UNDER DISABILITY, ETC. 36 1



h life-tenant, it shall be the duty of the court to appoint a
3 shall take possession of such land, and hold the same as
y direct, and collect arid receive all the rents and profits of
nd pay the same into court for such disposition thereof as
y make.]

chapter 63 of the General Statutes, a married woman having a life-estate
not enforce a sale of the property in an action against reversioners or
though she alleged and proved that the sale would ** benefit the parties
; property.' ' Henning v. Harrison, &V., 13 Bush, 723. It seems, however,
so under §§491 and 492 of the Code, if the remainder is contingent, or if j
or remainder-men are under disability (Gossom'v. McFerran, 79 Ky., 236; I
•r, 84 /df.,452) : aliter, as to reversions or vested remainders, the owners of |
r no disability; for, as to the proceedings against them, J 491 is uncon-
ssom v. McFerran, supra.

\ to the opinions in Henning v. Harrison, &*c, 13 Bush, 723, and Munnell
\ Ky., 452, a court of equity " has no power," upon the petition of a mar-
upon that of her and her husband, to order a sale of land owned by her in
her it be her general or her separate estate ; or to order a sale of her life-
rhether it be her general or her separate estate, except in connection with
:rsion or remainder as authorized byg 491. But I submit that the fact that
ould be erroneous does not prove that the court "has no power" to make
rule being that, when a court has jurisdiction of the person and the subject
orders, though erroneous, are not void,
nd is given pursuant to §493, a sale under §491 is void. 81 Ky., 127. /

1]. Requirements as to sales under §§489 and 4gi.— -Jn the
ioned in subsections 3, 4, and 5 of §489, and in §491 —
. No sale shall be ordered if forbidden by the deed, will,
under which the property is held (a).

:le papers, or copies of them, under which the property is
> filed with the petition.

The wife and children, if any, of the person of unsound
e made defendants to the action.-

nust be stated in the petition, and must be proved, showing
will benefit the defendant ; or, in the action mentioned in
lust be stated in the petition, and must be proved, showing-
will benefit the parties interested in the property.

vision, when applicable, is mandatory (80 Ay., 424) ; but it does not apply
I.90 (81 Ay., 604) ; and, testatrix having devised land to her daughters for
lainder over in fee, with a provision that «' the real estate devised by me to
all remain theirs respectively and their heirs as patrimonial estate, and not
jm to be sold," the court said : "The pronoun ' them ' in the clause just
well to the devisees in remainder as to the daughters of the testatrix, and
pon the power of alienation, if valid to the daughters, is valid as to the
»irs of the daughters, and would create a perpetuity, which our laws do
id therefore held that a daughter could convey her life estate. Henning v.
sh, 726.



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362 PROCEEDINGS IN CERTAIN ACTIONS. [Tin

§ 493. W/ten bond to be given by guardians, &c. — infant mat
women to answet. — Subject to the provisions of §§ [491, (Act \\
page 57)], 496 and 497, and excepting the cases mentioned in sub
tions 1 and 2 of § 489 —

1, The guardian of each infant, the committee of each persoi
unsound mind, and the husband or next friend of each married won
must, before the sale is ordered (a), execute a bond to the infant, in
married woman, or person of unsound mind, with at least two suret
worth not less than double the value of the estate to be sold (b), in j

stance as follows: "We, , principal, and , sureties, bind<

selves to that the said , as guardian [or committee or husb

or next friend], will faithfully discharge all his duties as such, and
comply with the judgments and orders of the court in the action,

will account for, pay, and deliver, to the said all money or pi

erty due or belonging to him (or her) when required* \c).

2. The court shall indorse its approval on said bond (d), which i
be recorded with the order of sale, and certified by the clerk of
court, who shall deliver it to the clerk of the county court; and it si
by him, be recorded and properly indexed.

3. If the bond be not given, any order of sale, and any sale or con
ance made under such order, shall be absolutely void and of no effect

4. In an action against an infant married woman, no order of
shall be made until she file an answer consenting to the sale
acknowledge it, on privy examination, before the court, or the ju
thereof, or a commissioner appointed by the court.

[5. In the case mentioned in §491, the court ordering the
shall, by its commissioner, retain the custody and control of the 1
realized by the sale until the same is reinvested in real estate, or in s
other property as the funds of persons under disability may be inve
by authority of law, and the court shall order the money to be paid
its commissioner, directly to the person from whom the purchase
reinvestment is made, and to no other person, and in which case
bond shall be required. (Act 1892, page 57.)]

(a) A provision in the order of sale that it «« shall not take effect " until bond be g
does not give jurisdiction, though bond be given before the sale (I Met., 262, 263, 424
and a bond given simultaneously with the order is sufficient, and a recital in the orde
bond had been given authorizes the inference that it was given before, or simultane
with the order, though the bond, as copied, purports to be dated one day after the
(1 Duv., 353-54) : but it seems clear that under \ 493, subs. 3, a sale will be void 1
bond be given before it is made. 18 B. M. $ 781 ; I Met., 262, 425; 81 Ky. y 127.

(6) I. The fact that the sureties are not solvent can not affect the validity of the
or of the sale. 81 Ky., 128.

2. The giving of this bond does not release the sureties of the guardian in the c<
court, as to money received from a sale of the infant's land. 8 Busk, 546.



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GENERAL PROVISIONS. 363

86 of the Revised Statutes (art. 3, § 2), required the infant's guardian to
tipulating a faithful discharge of all his duties under this act, and under
cree of the court in pursuance thereof;" and a bond stipulating that the



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 50 of 142)