134 Ky. 175 | Ky. Ct. App. | 1909
— Affirming-
On March 4, 1880, James M. Saffell executed to his wife, Martha F. Saffell, the following deed: “This indenture made and entered into this 4th day of March, A. D. 1880, between James M. Saffell, of the first part, and Martha F. Saffell, his wife, of the second part, both of the county of Franklin and state of Kentucky, witnesseth: That whereas, the party of the first part has heretofore received six thousand and nine dollars ($6,009) from Lewis A. Berry, Sr., father of the party of the second part as a gift to her, now this indenture witnesseth: That the party of the first part in consideration of the premises, and also of the love and affection he has and bears towards the party of the second part, has given, granted, aliened and conveyed, and by these presents does give, grant, alien and convey with general warranty title (for the sole and separate use and benefit of herself and her child or children free from the control and debts of party of the first part with power in her to dispose of the same by will or otherwise) unto the party of the second part, her child or children and assigns forever, the following described real and personal property, to wit: [Here follows description] — together ydth all and singular the appurtenances thereunto belonging, or in any wise appertaining. Also all furniture (kitchen and household), useful and ornamental, contained in said family residence. In witness whereof the party of the first part has herunto set his hand and affixed his seal the day and date first above written. James M. Saffell.”
The first question to be determined is what estate Martha Saffell took in the land under the deed? It will be observed that the only party of the second part in the deed is Martha P. Saffell. It will also be observed that the consideration for the deed moved wholly from her. The deed was made in consideration of money which her father had advanced her which her husband had received. The. deed conveys both land and personal property, and the title to the personal property is the same as the title to the realty. It provides that it is “for the sole and separate use and benefit of herself and her child or children, free from the control and debts of the party of the first part, with power in her to dispose of the same by will or otherwise, unto the party of the second part her child or children and assigns forever. ’ ’ It was plainly not the purpose of the deed to create a life estate in Mrs. Saffell. She is given power to dispose of the property by will or otherwise, and she alone is made the party of the second part. As the entire consideration moved from her, we think the court properly held that the words “child or children and assigns forever” were used in the sense of heirs and assigns,
It remains to determine whether the judgment and sale were void as against the infant defendants. It is earnestly insisted that the court was without power upon a mere motion at a succeeding term to set aside the judgment and sale, and that the only proceeding by which he could vacate the judgment was by a petition filed under section 520 of the Civil Code of Practice. If the judgment was attacked as erroneous, and the purpose of the proceeding was to correct some error in the judgment, then the proceeding must be by petition, as directed by section 520; but, if the judgment is void, it is a nullity, and, if it is a nullity, it may be set aside upon motion in the court which entered it. This was always the common law rule, and it is recognized by section 763 of the Civil Code, which provides that a void judgment shall not be reversed until a motion to set it aside has been made and overruled in the court which entered it. The infants could not appeal from the judgment without making a motion to set it aside, and, if it is void, the circuit court properly set it aside, for it would be a vain thing to require a motion to be made in the circuit court to set aside the judgment before an appeal may be taken, if the circuit court is without any authority when the motion is made to grant relief. The sale was made under section 489, subsec. 3, of the Civil Code, which authorizes the sale of an infant’s estate for his maintenance and education; but section 493 of the same title provides as follows: “ (1) The guardian of each infant, the committee of each person of unsound mind, and the husband or
No bond was executed Lo the infants or approved by the court before the sale was ordered, as far as the order of sale shows. The order of sale which was entered on January 17th is entirely silent on the subject of the bond. On January 28th the following is entered upon the order book of the court: “Franklin Circuit Court. Jan. 28, 1905. Bond. James M. Saffell, &c., Plaintiffs v. Frances T. Saffell, &c., Defendants. We, James M. Saffell, principal, and E. IT. Taylor, Jr., surety bind ourselves to Frances T. Saffell, Agnes T. Saffell, and James M. Saffell, Jr., that the said James M. Saffell, as guardian, will faithfully discharge all his duties as such, and will comply with
The case, therefore, comes to this: That the court accepted the bond in which E. H. Taylor, Jr., alone was surety, and this is the only bond which he accepted or approved. It will be observed that the statute provides that, before the sale is ordered, the guardian must execute a bond with at least two sureties worth not less than double the value of the estate to be sold, and that the court shall indorse its approval on the bond, which shall be recorded with the order of sale, and, if the bond is not given, any order of sale, and any sale or conveyance made under the order, shall be absolutely void and of no effect. In
It remains to determine whether a bond taken with one surety is sufficient to 'satisfy the statute.- This precise question was presented to the court in Barnett v. Bull, 81 Ky. 127, 4 R. 939. In that case, holding the sale void, the court said: “The guardian must give the bond as required with at least two sureties, and it is not a bond under this provision of the Code unless this is done. A sufficient reason for requiring the bond is that the section of the Code requires it; and, while it may be urged that the rule under the former statute should be followed, this can not be done, because it would be a plain disregard of the statute. The sale'is void without the bond, and therefore the purchaser ought not to be required to comply with his bid. ’ ’ This opinion was followed in Isert
Judgment affirmed.