118 Ky. 652 | Ky. Ct. App. | 1904
Opinion oe the court by
Reversing.
In ibis action it is sought to sell a lot of ground situated, in Paducah, Ky., for division of the proceeds among the owners, un<Jer section 490 of the Civil Code of Practice-The appellee Henry Lewis, is the owner of a life estate in. the land during the life of Mrs. Margaret Berry, from whom he purchased his estate therein. The children of Mrs. Margaret Berry, eight in number, were originally the owners of all the remainder interest in the estate, but one of them died, leaving infant children, and one sold her interest to Thomas Lewis. All of the remaindermen, except 'Thomas-Lewis, resist the sale of the land.
The authority of the chancellor to make the sale is rested by the pleadings both upon subsections 1 and 2 of section 490. The final judgment ordered the property sold, and the
The evidence and actual sale under the judgment show the land to be worth $1,400. Mrs. Margaret Berry’s age at the date of the judgment was 57 years, and her life estate, under the life tables, was 50.S2 per cent, of the proceeds, or something over $700.
It is insisted by appellee that the judgment of the chancellor may be upheld under subsection 1, on the ground that the remainder interest of the appellants is a vested estate, and the share of each owner is worth less than $100. The principle of law involved in this proposition may be sound (Ward v. Edge, 100 Ky., 757, 19 R., 59, 39 S. W., 440), but the facts upon which it is based are not to be found in this case. The record indubitably shows that the share of appellee Henry Lewis in the estate under consideration is worth at least $700, and he is none the less the owner of a share in the property, within the meaning of the section, because his interest is a life estate. By the very terms of the statute, the sale can not be made unless the share of each owner is worth less than $100. The language applies to the value of .the share of the owner at the time the sale is sought to be made, without reference to the time the interest is acquired, so that, if one owner purchases the share of another, and thus increased the value of his share to $100, or more, the sale can not be had under this section, although the remaining shares are each worth less than $100. Subsection 2 of section 490 provides that a vested estate may be sold for division, “if the estate be in possession, and the property can not be divided without materially impairing its value, or the value of plaintiff’s interest therein.” It will be observed that in
Swearingen v. Abbott and other, 99 Ky., 271, 18 R., 184, 35 S. W., 925; Malone v. Conn, etc., 95 Ky., 93, 15 R., 421, 23 S. W., 677; and Dineen v. Hall, 112 Ky., 273, 65 S. W., 445, 66 S. W., 392, 23 Ky. Law Rep., 1615
It follows, therefore, that the judgment ordering a sale of the land is unwarranted, and it is therefore reversed,, with directions to dismiss the petition.
Response to petition for rehearing by Chief Justice Hob-son.
January 19, 1905.
In the petition for rehearing, counsel call our attention to subsection 2, section 496, of the Code, which reads as follows: “If the share of a joint owner be of less probable value than one hundred dollars ($100.00), a sale of it may be ordered, although the owner of a share worth more than one hundred dollars ($100.00) may not consent to a sale.” We are unable to see that this provision has any application to the case before us. The purpose of the provision is to protect the owner of a share worth less than $100. For it applies where the owner of a share worth more than $100 may not consent to a sale. That is not this case. The grammatical construction of the provision would seem to be that the sale of the share of a joint owner which is of less probable value than $100 may be ordered, though the owner of a share worth more than $100 may not consent to a sale of the property.
Petition overruled.