| Ky. Ct. App. | Oct 6, 1908
Opinion of the Court by
Affirming;.
Elizabeth G-eohegan, who died about the year 1850, owning certain lots in Lexington, Ky., devised the property to four of her daughters and one son. The son conveyed his interest to the four daughters. One of the daughters died, and devised her fourth interest to Ellen White, one of the other three daughters, thus vesting in Ellen White one-half of the property and one-fourth each in her two sisters, Anna Murphy and Margaret Caulfield. Margaret Caulfield died
(1) Neither the title nor possession of the property sought to be sold was sufficiently alleged in the petition.
It is averred in the petition that Elizabeth Geohegan owned the property at her death. Her will is set out, and the various transfers; and it is alleged that each of her four daughters owned one-fourth of the property. The names of the heirs and devisees of the daughters are given, and, while it is not in words stated in the pleadings that the plaintiffs and defendants are in possession of the property, this fact is apparent from the allegations of the pleadings. Subsection 2 of section 490 of the Civil Code of Practice authorizes a sale of a vested estate in real property jointly owned by two or more persons, if the estate be in possession and the property cannot be divided
(2) Nellie Parker, one of the plaintiffs, was the statutory guardian for Louise Parker, one of the infant defendants. The court, upon affidavit filed, appointed a guardian ad litem for Louise Parker, and he filed his report in the regular form. It is insisted that there was no necessity for the appointment of a guardian ad litem. .
By subsection 2 of section 38 of the Civil Code of Practice a guardian ad litem may be appointed by the court, whether the guardian appear for the defendant or not. The appointment of a guardian ad litem is a matter within the discretion of the court in such cases, where the guardian’s interest may be adverse to his ward’s; and it was eminently proper that the court should appoint a guardian ad litem in a case like this, where the infant’s guardian was one of the plaintiffs in the suit. That this is the meaning of the Code is shown by subsection 2 of section 499; for there is the same necessity for the appointment of a guardian ad litem in actions for the sale of land as in actions for its division. By subsection 3 of section 36 no judgment may be rendered against the infant until the regular guardian or the guardian ad litem file .answer or a report as therein provided. But there may be a judgment when the proper report is made by the guardian ad litem. See Gardner v. Letcher, 29 S. W. 868, 16 Ky. Law Rep. 778. A contrary rule
(3) No bond was executed to the nonresident defendants.
This was a proceeding to sell land for the division of the proceeds among the owners of the land. In such a proceeding it is unnecessary that a bond should be executed under section 410 of the Civil Code of Practice, to the nonresident defendants. Hogue v. Yeager, 107 Ky. 582" court="Ky. Ct. App." date_filed="1900-01-24" href="https://app.midpage.ai/document/hogue-v-yeager-7134341?utm_source=webapp" opinion_id="7134341">107 Ky. 582, 54 S. W. 961, 21 Ky. Law Rep. 1299. So much of the petition as set out that Ellen-White’s interest was subject to her debts was only in aid of the main object of the suit, that the claims of all parties against the land might be settled in one action. These matters did not change the essential nature of the case in any way.
(4) Some of the parties were not before the court ■on the cross-petition.
If any of the defendants are not before the court on the cross-petition of the mortgagee, they must be brought before the court-before any part of the proceeds are paid out; but the fact that they were not before the court on the cross-petition of the mortgagee in no wise affects the validity of the sale. The sale was made on the plaintiff’s petition and amended petition. Were the rule otherwise the plaintiffs, in a case like this, might be indefinitely delayed by the
(5) Some of the heirs were not before the court.
The heirs of Sam Murphy are properly before the court; and, as shown by the proof, the parties before the court are the only ones who have any interest in the land.
(6) The will of Mrs. Murphy was not properly-authenticated.
The will of Mrs. Murphy, which was probated originally in California, and then probated in Kentucky, in the Fayette county court, was properly admitted in evidence. It must he conclusively presumed that the Fayette county court had proper evidence before it when it admitted the paper to probate. The action of the Fayette county court is conclusive, unless vacated as provider* by law. Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, 27 Ky. Law Rep. 124.
(7) Her will was not properly construed.
Whether the circuit court decided correctly in-determining that the daughters of Anna Murphy took a fee under her will does not concern the purchaser of the land. All the parties were before the court,, and if the grandchildren are not satisfied with the judgment of the circuit court they can take an appeal; hut the purchaser of the land'will he protected in his title, although the court may err in its distribution of the proceeds.
Judgment affirmed.