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I well and truly perform the decree of said court in the premises, and shall,
ne, obey all orders which may be made in the premises ; and shall faithfully
)urse all moneys arising from the sale of said property as the same shall
iras held to be fatally defective. Wells v. Cowherd 's heirs, 2 Mei. % 514.
; "the omission to approve the bond may be merely erroneous." 81 A)'.,

autology was used by the legislature in view of the declaration by the court,
McGrcUhy 1 Duv. f 349, that the word void, as used in chapter 86 of the
$, meant voidable,

that this Code does not attempt to make void a sale of real property of a
sability, except for failure to give bond for application of the proceeds,
irrors of the court, except in failing to require bond, render the proceedings
[ Ky., 123); and a purchaser can not resist payment, on account of such
ifirmation of the sale and expiration of the term when it was confirmed (I
fter confirmation without objections which should have been known by the
tsh t 590) : aliter, if the sale be void (16 B. M. y 289 ; 18 Id., 387), though no
ss the purchaser's motion for relief has been overruled by the inferior court.

ifirming invalid sales, see I Duv., 349 ; 2 Bush, 439 ; 7 Id., 590,
GENERAL PROVISIONS.

ale and conveyance of property. — I. The court shall appoint

irson, as commissioner, to execute its judgment (a).

ourt shall cause the title of the property to be conveyed by

ner to the purchaser, without warranty.

onveyance must be acknowledged before and approved by

id be certified by its clerk to the clerk of the county court

ment of proceeds. — In the actions for investment authorized
e court shall order the proceeds of sales to be invested,
; approval, in real estate in or out of this State, or in bonds
id States or of this State, or in the stock of a bank of this
:t to the same uses, trusts, and limitations, as the estate sold
to.

vation and disbursement of proceeds. — In the actions men-
jbsections 3 and 4 of § 489, the court shall make proper
:he preservation and disbursement of the proceeds of the

ions as to death of owner during infancy, &c. — If the owner
te which may have been sold under the provisions of this
during infancy ; or, being of unsound mind, die intestate ;
1 adult married woman, die without having received the
sale upon her written request, and upon privy exami-



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364 PROCEEDINGS IN CERTAIN ACTIONS. [TIT



nation as is authorized by this chapter, or without disposing in
manner authorized by law of the property in which the proceeds
have been invested, the person who would have been entitled to
property, if it had not been sold, shall be entitled to the proceed*
to the property in which they may have been invested.

7. Provisions as to share of joint owner. — All persons intereste<
the property must be made parties ; and, if objection to the sale
made by a defendant having a joint interest, his share shall no
sold (£), but the property may be divided, and a sale of the share
those desiring it may be ordered, if such division and sale can be n
without materially impairing the value of the property or of the plainl
interest therein.

8. When consent of trustee necessary. — If a deed or will give to a 1
tee a discretionary power to sell the property, the court shall not 1
power to order a sale of it without the consent of the trustee.

(a) An appraisement of lands sold for investment of the proceeds is not .nec<
under the act of April 9, 1878, which applies only to sales for debts. 59 Aj., 250.

(b) This objection can only prevail when a division can. be had without material!
pairing the value of the property or of the plaintiff's interest in it. Code, §49
Ky.y 606.

§ 495. Compensation for dower. — If a woman have a vested or
tingent right to dower in land ordered to be sold pursuant to the
visions of this chapter, the court, with her consent, to be taken 1
privy examination if she be married and of sound mind, or without
consent if she be of unsound mind, may order a sale of the land
from her right ; and shall provide for reasonable compensation tc
out of the proceeds of sale, or that she shall have the same rigr
property purchased with the proceeds as she had in the property j

J' By act of March 17, 1902 (Acts 1902, p. 48), § 495 was amend*
ing the following section :

If a woman have a vested or contingent right to dower in land so
to be sold, under section 490, she shall be made a party to the ac
brought to sell such land, and the court may, with or without
consent, order a sale of the land free from her right ; and shall pre
for a reasonable compensation to her out of the proceeds of sal
that she shall have the same right in property purchased with
proceeds as she had in the property sold.]

This amendment was adopted in view of the decision in Woman's Club v. Rt
Ky. Law Rep. % 1346, where it was held that in order to sell land free of a married wo
vested or contingent right of dower, she must consent upon a privy examination. T
was to avoid the case of a woman of sound miiid (who might be obstinate) blocking th
0/ property jointly owned.



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CHAP. XIV.] GENERAL PROVISIONS. 364a

1. As to the sale and conveyance of the inchoate right of dower of a married woman
who is a lunatic, see Bullitt and FdatuTs General Statutes, page 325 (Act of March 14, 1878).

2. As to a married woman's relinquishment of her inchoate right of dower, see Bullitt
and FelamPs General Statutes, page 726 (Act of February 11, 1876).

§ 496. I. Wheti bond, &c, dispensed with. — In the action mentioned
in subsection I of § 490 neither the bond nor the privy examination
provided for in this chapter shall be required.

2. Sale of a joint owner 's share. — If the share of a joint owner be
of less probable value than one hundred dollars, a sale of it may be
ordered, though the owner of a share worth more than one hundred
dollars may not consent to a sale.

This provision, as well as the next preceding one, obviously refers to §490, subs. 1.

§ 497 [S43]* When purchase-money to remain lien on land until dis-
abilities are removed, &c. — 1. In the action mentioned in subsection 2
°f § 49°t ^e share of an infant, or of a person of unsound mind, shall
not be paid by the purchaser; but shall remain a lien on the land
bearing interest until the infant become of age, or the person of un-
sound mind become of sound mind, or until the guardian of the infant,
or the committee of the person of unsound mind, execute bond as is
required by § 493 (a)

2. The infant upon becoming of age, or the person of unsound mind
upon becoming of sound mind, or the guardian or committee of the
infant or person of unsound mind upon executing bond, may receive
the proceeds; but, if the infant be a married woman, the provisions of
subsection 6 of § 494 must be complied with.

3. The proceeds when received by a married woman shall be her
separate property.

4. The court may permit the guardian or committee, without ex-
ecuting the bond above mentioned, or the married woman, though she
be an infant, to receive the interest on the money until it is paid.

(a) "In this case the infants are before the court by their statutory guardian, and the
purchaser can require that this guardian shall execute the bond and take the money; and
if he fails to do so, the chancellor will doubtless find some one who will give the bond, or
in some way relieve the purchaser." 81 Ky., 122.

§ 498. Who may join in action for sale and investment. — Two or more
persons, either of whom can bring the action mentioned in subsection 5
of § 489, may join therein against defendants who jointly own the prop-
erty mentioned in the petition.

The following notes to §§ 489-492 may be useful :

\ 489. Sales of real property of infants.

a. It is not necessary for a guardian who files an answer, asking for a sale and re-
investment, to make his ward a party to his pleading, she being a defendant to the original
action. 88 Ay., 25, 26.



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[64b PROCEEDINGS IN CERTAIN ACTIONS. [titli

b. In Lynn v. Lynn, 17 Ky. Z. Rep., 1364. the court refused to sell an infant's*re
or his education and maintenance at the instance of his step-father.

c. A court of equity has no power to order a sa!e of an infant's real estate in ordei
any out an executory contract of sale made by an unauthorized person. Kmslov
Trove, 98 Ky , 266.

d. In Wotnble v. Price, 66 S, W,, 370, it was held that in an action by a guan
gainst his ward for the sale of the ward's real estate and a re-investment of the proa
s provided by § 489, plaintiff must, as required by { 492, subs. 4, state facts showing 1
he sale will benefit defendant and not merely his conclusion to that effect.

e. In Elliott v. Fowler, 65 S. W., 849, it was held that a judgment for the sale of
of ant's real property and a sale made thereunder, are void, unless all the provisions of
tatute authorizing the sale have been strictly complied with; and, therefore, under <
'ode Prac. \ 489, authorizing the sale of an infant heir's estate in real property for
ayment of a debt of the ancestor in an action brought for a settlement of the ancest
state, a judgment rendered in such an action for a sale of all the decendent's land be
be amount of the indebtedness had been ascertained, and without any allegation as t<
mount, and the sale made thereunder, were void as to an infant heir, to the extent
lore land was sold than necessary to pay debts, though the petition alleged that it w<
e to the interest of all the heirs to sell all the land, the record showing that the land
ivisible without impairing the value of any interest.

J 490. When real property of joint owners may be sold.

a. As to venue when lands are in different counties, see note b to § 62, ante, page ;
nd notes 6 and 7 to § 66, ante, page 49b.

b. Bonds by guardians are unnecessary to make an order of sale valid. 88 Ky,, 29.

c. Foreign guardian can not represent infant unless authorized by county court,
ote to } 35, subs. 4, ante, page 742.

d. In Howard v. Singleton, &V., 94 Ky., 399, the court held, on the authority of Sk
. Harrison, Jr., <5rV., 84 Ky,, 144, that, in an action by a guardian for the sale of 1
rhen the share of each owner is worth less than $100, the ward is not a necessary pa
n note (c), ante, page 359, I made a query as to that decision. I now submit that \ 4
n declaring that "real property jointly owned by two or more persons maybe sold .

ri an action brought by either of them, though the plaintiff or defendant be of unsound n
r an infant," requires every joint owner to be made a party to the action as plain tif
e fen dan t; and, 2, that \ 494, subs. 7, which declares that "all persons interested in
•roperty must be made parties," applies to all the actions authorized by Title X, ch. X
learly, at any rate, as its subsequent language shows, it applies to actions for the sal
*nd owned by two or more persons.

e. In an action under J 490, it is sufficient for a defendant who is alleged to be in
erse possession to deny the plaintiff's title. 88 Ky., 645.

/. The venue of an action brought under $ 490, subs. 2, is fixed by } 62, subs
n erhins v. McCarley, 97 Ky., 43, 46.

g. The indivisibility of an infant's land is not such as exists with respect to anot
arcel owned by some one else, but as to lands owned jointly by the infant and anotl
Velleyv. Muir, 17 Ky, L. Rep., 167.

h. Estate in possession,

1. In Malone v. Conn, 95 Ky., 93, it was held that a life-tenant in possession could
maintain suit against infant remaindermen for a sale under this section, the court saj
hat it "applies only to estates in possession by those holding jointly and can not be 1
o apply in cases where the possession is with the particular estate, or the estate for 1
Jor will the court construe the statute [?49°] as permitting the life-tenant to surrender
possession and vesting it in the remaindermen by merely asking that his life-estate be so]

2. A creditor of an insolvent assignor can not maintain an action to sell prop



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] DIVISION OF LAND AND ALLOTMENT OF DOWER. 365

ted by the assignor and another; the assignee is the proper party to bring such
illy. Cornwall, 95 Ky., 512, 538.

possession must be in the infants; therefore infant remaindermen in one-fourth of
:ould not maintain an action against the owner of the three-fourths and the life-
he other fourth. Swearingen v. Abbott, 99 Ky., 271.

term "estate in possession" is used as descriptive of the nature of the estate or
e and not as describing the peculiar situation of the land itself with regard to
>n it by strangers. Wards. Ed^e, 100 Ky., 757, 771.

nt owner can not obtain a sale if the deed under which the property is held
sale of the property until another joint owner becomes of age. Young v. Young,
?e/>., 1074.

Sale of reversion or remainder.

f 1882. No bond is required for a sale under this act, where property is held
e for the life of one with remainder over to an unascertained class. Craig v.
Ky., 484, 488.

f 1892. (See §493.) No bond is required where the court retains control of and
e proceeds. Lutlretlv. Wells, 97 Ky., 84, 89.

ngeni Remainder. As to the sale of a contingent remainder, see 97 Ky., 90.
only estates in futuro which can be sold under the provisions of this section are
emainder or in reversion. This section does not authorize the sale of future
.ted by executory limitation. In Newman v. Ecton, 14 Ay. L. Rep., 793, it was
he Code did not repeal so much of article 6 of chapter 63, of the Gen. Stats, of
horized a sale of estates created by executory limitation. See 3 Bush, 484;
) ; 8 Bush, 572.

ibs. 1. Forbidding sale my deed, will, etc.

e to A, declaring that the property "shall only be in trust for him, and that he
no right to sell or dispose thereof, but to be left to his heirs," gives him a life-
remainder to his children, and does not forbid a chancery-sale for re-invest-
Ky., 264.



CHAPTER XV.

DIVISION OF LAND AND ALLOTMENT OF DOWBR.

:, 3. By circuit or county court, on petition.

2. Provision as to persons under disability.
, 10 6. Commissioners to divide, appointment and duties of.

9. two may act.

7. to convey.

8. deed of, to be recorded.

10. Case, how to be tried.

11. removal of, to circuit court.

12. Appeal.

13. Apportionment of costs.

14. No verification of pleadings required.

15. Pay of commissioners.

16. Equity-jurisdiction not affected.

1 [546 to 556]. I. By circuit or county court, on petition. — A
esiring a division of land held jointly (a) with others, or an allot-



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366 PROCEEDINGS IN CERTAIN ACTIONS. [TITLE



ment of dower(£), may file in the circuit court or county court of t
county in which the land or the greater part thereof lies a petition cc
taining a description of the land, a statement of the names of the
having an interest in it, and the amount of such interest, with a praj
for the division or allotment; and, thereupon, all persons interested
the property who have not united in the petition shall be summoned
answer on the first day of the next term of the court (c). The writt
evidences of the title to the land, or copies thereof, if there be an
must be filed with the petition.

(a) This phrase embraces tenants in common and in coparcenary. Code, §732, subs.

(b) I. As to a widow's right to dower and the mode of allotting.it, see General Statu
ck. 52, article 4, $ 2 to 14, and Bullitt and Feland*s notes thereto.

2. A widow's application for and obtention of dower, without asking for a homeste
waives her right to the latter. 82 Ky. y 585.

(c) An adverse claimant of the land is not a necessary party. 82 Ky. y 503.

2. Provisions as to persons under disability. — The statutory guardi
of an infant, committee of a person of unsound mind, and husband
a married woman, may file or unite in the petition, in the names of, a
in conjunction with, such infant, person of unsound mind, or marri
woman; and, if the petition be against an infant, person of unsou
mind, or married woman, the guardian, committee, or husband m
appear and defend for them : if they fail to do so, the court shall appo
a discreet person for that purpose.

3. When court may make order. — Upon such a petition by all int
ested in the property ; or upon the service of a summons on all w
have an interest in the property and have not united in the petition, t
days before the commencement of the term, the court may order 1
division, or allotment of dower, according to the rights of the parties.

4. Commissioners to diinde, &c. — The court shall appoint three co
petent persons to make the partition, or allotment of dower, or boi
having a due regard to the rights of all parties interested. Before p
ceeding to act, the commissioners shall take an oath to discharge th
duty impartially.

5. The order of appointment shall fix a time and place for 1
meeting of the commissioners, who shall meet accordingly ; but, if p
vented from meeting at the time and place so fixed, they may meet
soon thereafter as convenient ; and may adjourn to such other time a
place as they may agree upon, until their duty shall be performed.

6. They shall survey and allot to the parties their respective intere
in the land, and make report thereof to the court ; which may eitl
confirm, set aside, or remand the report to the commissioners for c
rection (d).



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DIVISION OF LAND AND ALLOTMENT OF DOWER. 367



urt '• should be governed by those rules of equity by which a court of equity
rned in making partition ; namely, to allot the parcels of each together, or^
be, without doing injustice to others." 7 B. M., 91 ; 8 Bush, 335.

tissioner to convey or divide. — If the report be confirmed, a
tr to be appointed for the purpose shall, by deed, convey to
he land allotted to him.

eport and deed shall be recorded in the clerk's office of the
t, in proper books to be kept for that purpose ; and, if the
mfirmed by the circuit court, it and the deed shall be cer-
\ clerk of that court to the clerk of the county court, for

}f the commissioners [to divide, &c.,] may act, if one refuses
so.

' case to be tried. — A party summoned may, by answer, con-
allegations of the petition or contest the rights claimed
d, thereupon, the case shall be tried and decided as an
ion, but without the intervention of a jury (e).

ht to dower is a right to real property, according to the meaning of the
ations. 79 Ky., 499.

Uy court has the same power as a chancellor to hear and determine equi-
»f defence against the making of partition ; and where land was devised to
remainder to B and C, and A purchased B's interest, it was held that the
dismissed A's petition for a partition between him and C, as a partition
en to A the motive and the power to improve his portion of the land and
en of cultivation on C's portion. 86 Ky. % 281.

oval of case to circuit court. — If the action be pending in the
: when such answer is filed, it may be removed, on motion
rty, to the circuit court, for trial ; and the clerk shall, there-
r the papers pertaining to the case to the clerk of the circuit

al. — An appeal maybe taken to the Court of Appeals from
nent, whether rendered by the circuit court or county court.
>rtionment of costs. — The costs of the action shall be ap-
nong the parties in the ratio of their interests, except that
sing from a contest of fact or law shall be adjudged against
>sful party.

son v. Williamson, 1 Met., 303.

erification of the pleadings shall be required.
if commissioners. — The commissioners shall be paid a reason-
isation, to be taxed as costs.

ty-jurisdiction not affected. — This section does not affect the
of courts of equity to make partition or allot dower.
24



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WHEN REVIVOR IS UNNECESSARY. 369



e right of action survive to or against the remaining parties,
iiiay proceed, without revivor, after statement, on the record,
ith or cessation of power (a).

igh the right of action do not survive to or against the remain-
the court may render judgment, as between them, if it can
>ut prejudice to others (b).

ORSHIP OF RIGHTS OF ACTION.
ttiffs.

int tenants or owners,

n at law by A and the executor of B, on C's promise to pay money to A and
aid: "By the common law, joint rights survive to, and become vested in,
joint tenant. But, for the encouragement of trade and husbandry, it is held
i farm, though occupied jointly, and also stock used in a joint undertaking
tnership in trade, shall always be considered as common, and not as joint
there shall be no survivorship therein. . . . This, however, must be
the right of property only ; for, although the duty does not survive, the
ind therefore the survivor may sue alone ; and when he recovers, he shall
iie executor of the deceased partner for his share. The executor and sur-
join in an action against the debtor ; " and it was held that the defendant's
and B jointly " must be considered as a partnership transaction;" that,
5 death of B, the right of property did not wholly survive to A, the right of
id that a judgment in favor of the plaintiffs was erroneous {Morrison v.
, 4$o; ace. 3 Mon., 281-82); and that rule was held to apply to actions in
>ts due to a firm. Litt. S. C, 495 ; 9 B. M., 187. But, " upon the dis-
partnership by death, the personal representative of the deceased partner
t in common with the survivor of all the partnership property and effects in
:re being a distinction between such property in possession and mere choses
s, and other rights of action belonging to the partnership [rights to sue for],
the survivor." 13 B. M., 413.

, howevec, according to the common law, upon the death of a joint owner
hether the title was legal or equitable, not only the right to sue for the
the right to the property, vested in the survivor, without liability to the
i of the decedent (Litt. S. C, 494-95; 6 Mon., 17) ; and the right of joint
ond to convey land, formed no exception to that rule. Barclay v. Hendricks'
378. And under the act of 1796 (M. & B. t 876) which abolished the jus
vas held that, though upon the death of a joint tenant the right of property
epresentatives as tenants in common with the survivor, the right to sue (at
:ly in the survivor; because, said the court, "it would make strange con-
i plaintiff should sue in his own right and another in another's " (Morrison
f in, 482; Adit v. Cornwall, 3 Mon., 276); and the same rule was held to
tion in equity. Litt. S. C, 495 : contra, 2 Mar., 193.

everal distinctions between the act of 1796 and the General Statutes, as to
I, the former destroyed survivorship even as to the estates of executors or
*., 54), whilst the latter does not (G. S., ch. 63, art. I, \ 14); 2, the former
to an estate conveyed to a husband and wife (1 Dana, 37, 243), whilst the
S., ch. 52, art. 4, \ 13 >$ 3, the latter declares, as the former did not, that
joint tenant shall not "affect the mode of proceeding upon any joint con-
ent" (G. S.,ch. 63, art. I, \ 14) ; and, 4, the former declared, as the latter
, upon the death of joint tenants, their estates shall pass by descent or
e same manner as if such deceased joint tenants had been tenants in com*



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370 REVIVOR OF ACTIONS. [TH

mon;" but that omission is immaterial, because the passing of a joint tenant's ii
to his representatives or devisees necessarily makes them tenants in common wi
survivor.

The fact that, under the Code, as formerly, joint tenants must join in an actic
joint property, does not prove that, if one should die 'pendente lift \ the other can nc
ceed alone, being responsible to the decedent's representatives for what he may re
The only difficulty about following the rule which prevailed under the act of 1796
the survivorship of the right of action, grows out of § 18 of the Code, which declare
«« every action must be prosecuted in the name of the real party in interest," exa
actions by personal representatives, &c.

Did the legislature mean by the word "prosecuted," not only that joint tenant!
join in an action, but that, if one should die pendente lite, his representatives must
cute an action for his share ? If so, must they not, being tenants in common, bring
action? See notes, ante, page 17. According to a dictum in Smith v. Ferguson, 3
426, if, in an action by two copartners, one died pendente lite, the right of action su
to the other. I perceive no reason for a distinction, in this respect, between copa



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 51 of 142)