157 Ky. 804 | Ky. Ct. App. | 1914
Opinion op ths Court by
Affirming on Cross Appeal and Reversing on Original Appeal.
■ Section 52, Civil Code, is as follows:
“If the defendant be under the age of fourteen years-the summons must be served on his father, or, if he have no father, on his guardian; or, if he have no guardian, on his mother; or, if he have no mother, on the person having charge of him.
“If any of the parties upon whom summons is directed to be served by this section is a plaintiff, then it shall be served on the person who stands first in the order named in said section, and who is not a plaintiff; and if all such persons are plaintiffs, it shall, on the affidavit of one or more of them showing that fact, be the duty of the clerk of the court to appoint a guardian ad litem*807 for the infant, and the summons shall he served on such guardian.”
No process on the petition for revivor was issued ag’ainst or served on Farlena Brown, the mother of plaintiffs. The presumption that the officer did his duty is rebutted by the return showing’ how the process was executed, and that it was not executed as required. Beverly v. Perkins, 1 Duv., 251; Cheatham v. Whitman, 86 Ky., 614. The infants under 14 years of age were not brought before the court by the service of process on them individually. Not being properly summoned, the appointment of the guardian ad litem was void, and did not have the effect of bringing such infants before the court. Allsmiller v. Freuchtenicht, 86 Ky., 198; 5 S. W., 746; Lawrence v. Connor, 12 Ky. L. R., 86, 14 S. W., 77; Beverly v. Perkins, supra; Roy v. Allen, 118 S. W., 981. That being true, the order of revivor, the order of confirmation, and the deed1 executed to the defendant, H. B. Brown, were void, and the proceedings were therefore not sufficient to vest him with title. As the three plaintiffs, Ida Brown, Smith Brown and Burns Brown, were not divested of title by the proceedings in question, or in any other way, it follows that they are entitled to recover three-sevenths of the land in question, and alse their pro' rata share of the rents accruing during defendant’s occupancy of the land, and of the value of the timber cut and appropriated by him. However, the land in question did not descend to I). B. Brown’s children absolutely. It was subject to the payment of the "mortgage liens thereon. These mortgage liens were paid off and discharged by the defendant. Having been in possession of .the land since his purchase the statute of limitations has not run against him. Brown v. Spradlin, 136 Ky., 703; 125 S. W., 150.
Plaintiffs cannot, therefore, recover their part of the land together with their pro rata share of the rents and timber cut, without repaying to defendant their pro rata share of the lien debts with interest. The chancellor should have offset the sum recovered by each of the plaintiffs on account of rents and timber cut by one-seventh of $350.27, with six per cent interest thereon from the date of payment by the defendant.
On the question of the rental value of the land, and the value of the timber cut by the defendant, we see no* reason to disturb the finding of the chancellor.