88 Ky. 20 | Ky. Ct. App. | 1888
delivered the opinion of the court.
The appellant, as the wife of the appellee, filed her petition in the Daviess Circuit Court against the appellee for the purpose of obtaining a devorce from him. She alleged in the petition that she was the owner of five acres of land in said county, and she asked the chancellor to protect her in the enjoyment of it, etc., etc. The appellee, in one paragraph of his answer, alleged that he bought, in 1872, said tract of land from Mr. Hathaway; that he paid him for it; that he paid for the building of the residence thereon; that, by an agreement between him and the appellant, Hathaway was to make the deed to Owen Murphy, who was to hold the land in trust for the equal benefit of the appellant and appellee, and their children by each other, and the child of the appellee by a former
Subsection 3, of section 96, of the Civil Code, provides: ££A cross-petition is the commencement of an action by a defendant against a co-defendant, or a person who is not a party to the action, or against both; or by a plaintiff against a co-plaintiff, or a person who is not a party to the action, or against both,” etc. So, by said section, a defendant may have a cross-action against a co-defendant alone, or a third person may be joined with the co-defendant, or against the third person alone, but he can not have a cross-action against the plaintiff alone or jointly with a third person. Subsection 1 of said section
So, if the appellee had any right to have the question as to his interest in said land settled in this action, his right was by counter-claim and not by cross-petition, for, according to the section of the Code last quoted, the defendant’s right to a counterclaim not only extends to the plaintiff, but to a person not a party plaintiff, if such person’s rights are connected with the subject matter of the counterclaim.
According to the facts stated in appellee’s answer, his child by his first wife, and his children by the appellant, were entitled to an equal interest in said land with himself and the appellant. Said children were therefore necessary parties to said action, because, first, they, or any one of them, had the right to say whether they wished the deed reformed; second, the children by the appellant and appellee might wish to contest the right of the appellee, and his child by his first wife, to an interest in said land. For these reasons, the children, not being parties plaintiff, ought to have been summoned, to answer the counter-claim.
As the evidence now in the case can not upon the return of the case be used against said children, it is unnecessary to determine whether or not it is sufficient to sustain the alleged trust.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.