184 Ky. 260 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
George B. Girdler, the owner of a tract of about 28 acres of land in Pulaski county, died some time prior to 1908, and left surviving bim a wife and five minor children. This action was instituted by the widow, Ma.ry L. Girdler, against the infant children for a sale of the land owned by Girdler and a division of the proceeds, upon the allegation that the land was indivisible. A guardian ad litem was appointed to represent the infants and filed an answer in which he alleged that he, ‘ ‘ after an examination of the pleadings and evidence herein, is unable to make an affirmative defense, but believes the relief prayed for would be to the best interest of the said infants.” One deposition only was taken and that supports the allegations of the petition. The case was then submitted for judgment and decree entered directing a sale of the land as prayed, and in due course the sale was had of the lands by the commissioner, at which sale J. W. Girdler became the purchaser at the price of $100.00. The master commissioner was directed to and did make a deed for the lands to the purchaser, and the purchaser paid into court the amount of his bid, which sum was first applied to the payment of cost and then distributed among the children and widow.
About nine years after the rendition and entry of this judgment, the youngest heir, Lena P. Girdler, yet an infant, ’by her guardian, prays an appeal in this court and asks a reversal of the judgment. There is no brief in the' record for the appellee, and the purchaser, J. W. Girdler, is not a party to the action.
The judgment, therefore, must be reversed in so far as it affects the infant appellant, Lena P. Girdler.
If J. W. Girdler, the purchaser at the decretal sale of the property in controversy, was a stranger do the record and a bona fide purchaser within sec. 391 of the Civil Code, the sale cannot be set aside, but if he was .not a bona fide purchaser within the meaning of that section of the Code, then the sale might be set aside. Webb v. Webb’s Guard., 178 Ky. 152; Hays v. Beaver Creek Coal & Coke Co., 178 Ky. 149.
Wherefore, the judgment is reversed for proceedings not inconsistent with this opinion.