157 Ky. 830 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
On July 11, 1884, Tbomas P. Ford executed and delivered to Ms daughter, Nancy Miriam Ford, a deed, which, omitting the description of the land conveyed, is as follows:
“This deed of conveyance made and entered into this the 11th day of July, 1884, between Thos. P. May and Elizabeth M. May of the County of Pike, and State of Kentucky, parties of the first, and Thos. J. Ford and Nancy Miriam Ford, Ms wife, parties of the second part,
“Witnesseth: That said party of the first part, for and in consideration of the sum of twelve hunderd dol*831 lars as an advancement to the said May Miriam Ford, late May, and our daughter, and for the further consideration of the love and affection we have for our said daughter do hereby sell and convey to the parties of the second part their heirs and assigns forever the following described property, to-wit.
“One tract of land on John’s Creek in Pike County and State of Ky. and on the East side of said Creek and bounded as follows,'to-wit: (Here follows description.)
“To have and to hold the same, together with all the appurtenances thereunto belonging unto the party of the second part, their heirs and assigns, forever, and the said party of the first part hereby covenants with the said parties of the second part that they will warrant the title of the property hereby conveyed unto the said party of the second part and their heirs and assigns forever.
“The restrictions placed on this conveyance by the Grantors is that the same shall in no wise be liable for the debts or liabilities of the said Thos. J. Ford and shall not be sold by him in any wise without the consent of his wife to whom this is intended to convey a separate estate.”
Prior to the year 1890 Nancy Miriam Ford died, leaving surviving her the following children: Samuel M. Ford, Louisa M. Ford, Birdie L. Ford, W. T. Ford, J. H. Ford and Bayard Ford. Thereafter Thomas J. Ford was appointed and qualified as their guardian.
On September 11, 1896, Thos. J. Ford, as guardian, brought suit against his children, alleging in substance that he as guardian had entered into a contract with W. R. May by which he had exchanged the lands described in the above deed for another tract of land belonging to W. E. May and located on John’s Creek in Pike County, Kentucky. He alleged in the petition that for various reasons the exchange of lands would be beneficial to the infants. Process was served on Samuel M. Ford, Louisa M. Ford, and Birdie L. Ford, who were over 14 years of age. On proper affidavits a guardian ad litem was appointed for Willie, John H. and Bayard! Ford, who were infants under 14 years of age, and process was served on the guardian ad litem. -Proof tending to show that the exchange would be beneficial to the infants was taken by deposition. The guardian ad litem filed a report favorable to the exchange.
On March 23, 1912, plaintiffs, Samuel M. Ford and others, children of Nancy Miriam Ford, alleging that they were infants, at the time the exchange was confirmed by the court, brought this action against W. R. May and their father, Thomas J. Ford, as guardian and in his own right, to recover the land embraced in the deed to their mother, and at the same time tendered to W. R. May a deed to the land which they had received in the exchange. They alleged in the petition that W. R. May had falsely stated that the land which they received in exchange was equally as fertile and productive as the land inherited from their mother, whereas the latter land was much more valuable. Its rental value was $300 a year, whereas the rental value of the land which they received in exchange did not exceed $100 a year. They asked that the judgment approving the exchange be set aside and held for naught, and that they be restored to the tract of land which they inherited from their mother, and also asked for an accounting for rents.
Later on plaintiffs filed an amended petition alleging that all of the plaintiffs were under 21 years of age when the lands were exchanged. They further alleged that on the date of the filing of the petition S. M. Ford was 36 years of age; that Louisa M. Marrs*was the wife of R. M. Marrs, and was then laboring under the disability of coverture, and was married before she attained the age of 21 years. At the date of filing the petition she was 34 years of age. Birdie L. Craft was a married woman, and was laboring under the disability of coverture ; that she was married before she was 21 years of age. That W. T. Ford was 28 years of age, J. H. Ford was 25 years of age, and Bayard Ford was 22 years of age, at the time of filing the petition. To the petition as amended, defendant W. R. May interposed a demurrer, which was sustained and the petition as amended dismissed. Plaintiffs appeal.
“We know of no provision of the statute authorizing .such a proceeding, and if approved by this court it would, in effect, repeal the statutes regulating the sale of infants’ real estate and remainder interests.
“It is never difficult, and particularly where the life tenant is the parent, to show that his action in selling is for the interest of all parties, and the children divested of title without having the supervision of the chancellor in the direction and disposal of the infants’ estate.
“While this is a remainder interest, and a reinvestment is sought of the proceeds, still it is a proceeding authorized by statute, and its provisions must be followed. The chancellor has the power to sell by reason of the statute, but he has no right to approve a sale already made, for then the court becomes subordinate in its power or jurisdiction to that of the life tenant, and surrenders the mode and terms of sale to him, and while subject to the court’s approval it is such a loose and anomalous proceeding as cannot be authorized, for if it was the only controversy, where the life tenant sells, will be — as between himself and the infants — was the sale beneficial.
“The chancellor must render the judgment of sale. It must be made by his commissioner or some one appointed to sell, over whom the court has control, and with whom the court can advise as to the propriety of confirming the order of sale. ” -
In the recent case of Howard v. Sebastian, et al., 143 Ky., 327, the court said:
“An infant’s title can be conveyed only by ¡sale made by order of a court of equity in the manner authorized by statute. ”
In the case under consideration there was no sale of plaintiff’s land for the purpose of investing the proceeds in other lands. Their guardian exchanged their lands for other lands. The court simply approved the exchange and directed the commissioner to convey plaintiff’s land to the defendant. The court’s power not be
In view of the fact that the question is not necessarily presented) for determination, we deem it unnecessary to' pass on the extent of Thomas. J. Ford’s estate in the land sought to be recovered. As the conveyance was made to him and his wife prior to the enactment of the Weissinger Act, he has either curtesy in the whole or a fee simple in one-half and curtesy in the other half. In either event, he is entitled to the whole of the rents, and plaintiffs cannot, therefore, recover the difference in the rental value of the two tracts of land. No other questions are passed on.
Judgment reversed1 and cause remandled with directions to overrule the demurrer to the petition as amended.