Graham v. Graham

71 Ky. 334 | Ky. Ct. App. | 1871

JUDGE HARDIN

delivered the opinion of the court.

This was a petition for tbe sale of land under section 1, article 1, chapter 86, of the Revised Statutes; the petition setting forth that Elijah Graham, sr., died seized of a tract of one hundred and thirty-six acres of land, which.descended to his children living, and his grandchildren representing his children who were dead, in such proportions as to require a division of the land or its proceeds into eight equal shares, subject to tbe dower of tbe widow of the decedent, and that these eight shares were of less value than one hundred dollars each. Among the heirs made defendants were the present appellees, the infant children of Silas Graham, deceased, a son of said Elijah Graham, sr., who through their guardian resisted the sale of their share of the land, and sought to have it laid off and set apart to them contiguous to an adjacent tract owned by them. The court ordered that the partition be made by commissioners, and that the interests of the appellees be laid off adjoining their other land, if that could be done without injury to the rights of others; and the division being so made and reported by the commissioners, and approved and confirmed by the court, the plaintiffs have appealed to this court.

If the court had power to order the partition at. all, it was right to order the commissioners to lay off the share of the appellees so as to adjoin their other land, if no detriment or injury would be done to other parties by doing so, as the court properly provided in the judgment. (Gaithers v. Brown, &c., 7 B. Monroe, 90.)

But the most important question to be determined is, is not the statute imperative in such a case that the court shall adjudge a sale of the entire tract? The statute provides that in cases like this “the court of equity for the county in which the land, or the greater part thereof, lies, may, on the petition of one or more of the heirs, decree a sale of the same.”

This, in our opinion, confers on the court power to order the sale without a partition, if in the exercise of a sound judicial discretion such a sale shall be deemed most beneficial to all the parties; but we do not construe the statute as mandatory or peremptory, either in its terms or meaning, and the court had authority in this case to adjudge that the appellees should have their proper share of the land laid off and reserved to them as preliminary to ordering a sale of the residue of the tract. It does not appear that the court abused its discretion, or that the partition made was not equitable and just. Wherefore the judgment is affirmed.