94 Ky. 336 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The appellants, as the only heirs at law of John Higgins, who died in 1869, the owner of a lot of ¿round in Barbonrsville, Kentucky, brought this suit
If the only issue in an action of ejectment were-one of abstract title there might be something in this, contention, but even then the legal seizin of Higgins in 1869, and the consequent lawful entry and possession of the heirs at that time, are not conclusive evidences of ownership and right of possession in the-heirs in April, 1892, when the suit was brought. Suppose Higgins — still living in 1892 — had sued, merely setting up his title and rightful possession in 1869, would the admission by the defendants of such facts-conclude the question of ownership and'right of possession some twenty years later ?
The plaintiffs must show a right, of entry in themselves and a legal estate in the premises existing in them at the time the suit was ■ commenced. The legal right to the possession as between the parties
The appellees insist that the service of process on the original petition, and the appearance of the infants by their guardian ad litem, were sufficient to properly bring them before the court, but it will be observed that the petition only sought a sale of a farm in the county, and not the lot in the town, and it is clear that they were not before the court as defendants, and if the action was such a one as required them to be made defendants, and so brought before the court, the judgment of sale was void. But this old suit was brought under section 490 of
The proper allegations were set up in the amended petition as to the ownership and value of the lot in contest. The report of the commissioners was made showing the necessary facts, and a bond executed fully protecting the rights of the infants, the appellants here. The judgment of the court directing , a sale recites these facts,- and we perceive no irregularity in the proceedings; certainly nothing rendering the judgment void. Construing section 490, it was held -in Shelby, &c., v. Harrison, Jr., &c., 84 Ky., 148: “That the guardian may, unquestionably, bring an action for his ward, and upon the conditions therein prescribed, obtain an order of court for a sale of the joint property without making the ward a defendant.” And although the appellants were named as defendants in the old suit, and not served with process on the amended petition, yet they were fully represented in. the action by their guardian who brought the action, and who was also their mother.
The evidence introduced showed a complete derivation of title so far as the appellees were concerned, and established the ownership and right of possession in the appellees.