Dawkins v. Hough, 112 Ky. 855

Dawkins v. Hough

112 Ky. 855 | Ky. Ct. App. | 1902

Opinion op tee court by

JUDGE BURNAM —

Affirming.

In June, 1896, the appellee, Mary I. Hough, instituted this suit in the Hardin circuit court to surcharge a settlement made by her former guardian, W. P. Reesor. She alleged, in substance, that the defendant 'Reesor qualified as her guardian in the Hardin county court (the county of their residence) in April, 1887; that, in addition to certain personal property, she owned an interest in a tract of land in Jefferson county, which wasi inherited from her'maternal grandmother, Mary Coffman, who died before her mother; that the Jefferson Southern Pond Drainage Company, after the death of her grandmother, procured a deed to be made to them for 10 acres of land located in Jefferson county, to satisfy an alleged lien for $64.81; that her guardian redeemed the land by the payment to the drainage company of $71.50 on the 1st day of March, 1888, with money in his hands belonging to her, and had the drainage company to make a deed to him personally, in fraud of her rights, and that he thereafter conveyed the land, in March, 1889, to one B. F. Dawkins, who devised it to his son J. E. Dawkins in trust; that both B. F. and J: E. Dawkins had full knowledge of all the facts, and knew that the land belonged to her. And she prayed that the deed be adjudged void, but that, if the land could not be restored to her, that Reesor, as guardian, should be charged with its value, and a reasonable rent therefor, in his settlement as guardian, in ad*859dition to the personal property which he had received. And in an amended petition J. E. Dawkins and those for whom he stood as trustee were made parties to the proceeding. They filed first a special demurrer and plea to the jurisdiction of the Hardin circuit court upon the ground that he was a resident of Jefferson county, that the summons was served upon him in that county, and that the land sought to be recovered also lay in that county, and that for these reasons the Hardin circuit court had no jurisdiction to hear or determine the title or possession to the land sought to be recovered. Upon final submission, the circuit judge' held that the purchaser, Dawkins, know that the plaintiff, Mrs. Hough, who was then an infant, unmarried, and residing with her guardian, who was also her father, owned an interest in the land with her father, and that the deed to him did not divest her of her interest therein, and directed that the deed should be set aside, and that she should have the possession of the land, with its reasonable rent from the date of the sale. From that judgment this appeal is prosecuted.

The appellantsi have omitted to have copied the prooí heard in the lower court, and bring the case up upon the single question of the jurisdiction of the Hardin circuit court to render the judgment complained of, and rely for. reversal upon section (82 of the Civil Code of Practice, which provides that “actions for the recovery of real property, or ,any interest therein, must be brought in the county in which some part thereof is situated.” Section 67 of the Civil Code of Practice provides that “an action by the ward against his guardian for the settlement of his accounts' . . . must be brought in the county in w'hich.the guardian was qualified.” The gist of the action instituted by appellee was to surcharge the settlement made by her guardian, *860and the cancellation of the deed to appellant, or a decision hpon its validity, was a necessary incident to the settlement. Her guardian had qualified in Hardin county,-and the suit was therefore properly brought in Hardin county; and, as the Hardin circuit court had jurisdiction of the suit 'for a settlement of the accounts of the guardian, it had, as an incident, jurisdiction to take all necessary steps to afford complete relief, and to this end could inquire into the validity of the transfer of appellee’s land by her guardian, although located in Jefferson county. In the case of Webb v. Wright, 65 Ky., 126, It was held that the court having- jurisdiction of the persons and cause of action in a suit which was in effect for the settlement of a partnership, the proceeding, in rein, for the, sale of land in another county, attached as an. incidental remedy. And in Fishback v. Green, 37 Ky., 107 (9 R., 959) (47 S. W., 881), this court held that, in an action to settle an insolvent estate, the court had jurisdiction to decree the sale of' land situated in another county than that in which the action was pending. And in Doty v. Association, 103 Ky., 720 (20 R., 625) (46 S. W., 219, (7 S. W., 433), it was held that the Fayette circuit court, having jurisdiction of the parties and the original controversy, had jurisdiction to decree the sale of land in another county, as incidental to the original 'relief sought. And in Dehaven v. Dehaven’s Adm’r, 104 Ky., 41 (20 R., 663) (46 S. W., 215, 47 S. W., 597), it was held that, in an action properly brought in Oldham county for the settlement and partition of a decedent’s estate, thfe court had incidental jurisdiction to partition lands in Jefferson county, ,and to issue such writs as were necessary to put those entitled thereto in possession thereof. We are therefore of the opinion that as the suit was properly instituted in the Hardin circuit court, under section 67 of

i *861the Code, that court, as a necessary incident, had power to determine the controversy as to the real estate claimed by the ward in Jefferson county, and to decree a cancellation of the deed to appellant, and issue the necessary writs to put appellee in possession.

Judgment affirmed.

Judge Hobson not sitting.