112 Ky. 347 | Ky. Ct. App. | 1901
Opinion op the court by
Reversing.
It appears from the petition in this action that Samuel TV. Eakins departed this life the owner of a considerable body of real estate, leaving eight children and a widow. It further appears that 160 acres of said land was allotted' to the widow', Elizabeth Q., who afterwards married Thompson, it further appears that four of the heirs of said decedent, Samuel TV. Eakins, sold one-eighth interest in said dower, or what was assumed to be one-eighth, being 20 acres, and conveyed same by metes and bounds to certain parties, and finally the same was conveyed to Lee Eakins, the appellee herein. It further appears that the said widow of Samuel TV. Eakins united in the conveyance. All these convej anees were made during the lifetime of said widow. It is claimed in the petition that William Watson was the owner of one-eighth interest, by purchase, of the said 160 acres. The plaintiff finally prayed for the appointment of commissioners to divide said 160 acres of land between plaintiff and defendant, Lee Eakins, allot
The court, upon final hearing, without the intervention of commissioners, adjudged that the .appellee, Lee Eakins, was entitled to remain in the undisturbed possession of
The sole question presented for decision is whether or not the court was authorized to divide the land between the several parties in interest without an examination and report by commissioners; or, in other words, was the court authorized to adjudge to appellee the land claimed by him? It is evident that the plaintiff had no right to interfere with the occupancy or possession off the defendant until the death of the widow of Samuel W. Eakins, which death occurred in 1899. It is conceded that the proof as to whether or not the land claimed by the defendant is not -worth more than he would be entitled to if no conveyance had been made or possession taken by him is conflicting. It was decided in Hopkins v. Crouch, 86 Ky., 281 (9 R.554) 5 S.W., 557,that one tenant in common, by purchasing the interest of the life tenant,does not acquire the right to compel a partition and division of the land. Section 499 of the Civil Code of Practice provides that a person desiring a division of land held jointly with others, or an allotment of dower, may file in the circuit court or county court of the county in which the land or the greater part thereof lies a petition containing a description of the land, a statement of the names of those having an inter, est in it, and the amount of such interest, with a prayer for the division or allotment, and thereupon all persons interested in the property who have not united in the petition shall be summoned to answer on the first’ day of the next term of the court. Subsection 3 of said section provides that “upon such a petition by all interested in the property, or upon the service of a summons on all who have an interest in the property and have not united in the
For the reasons indicated, the judgment appealed from is reversed, and cause remanded, with direction to set aside the judgment, and for proceedings consistent with this opinion.