98 Ky. 266 | Ky. Ct. App. | 1895
delivered the opinion of the court.
Amanda J. Buford, widow of G.( Y. Buford, in 1890 sold and covenanted to convey a tract of land containing 226 acres, of which her husband had died owner, to Jesse Kins-low and others at the price of $1,180, and this is an action by W. H. Grove, assignee of one of the notes given for pur
The principal and only defense available, if any, is that she did not have nor can now make a good title to the land.
Mrs. Buford was appointed, in conjunction with another person, executrix of her husband’s will, and empowered thereby to sell certain tracts of land, including the one in. question, for the support of herself and testator’s children; but there was also a provision requiring division between his children of all property upon the arrival of the youngest at full age. It is conceded time for that division had come prior to 1890, and, as the executors had not then made sale of any lands, their power to do so was ended. So that when Mrs. Buford attempted to sell the tract of 22G acres, which was not, however, done in her representative capacity, she did not have title thereto nor any other than probably dower interest in it, the title being in Ora Grove, daughter of testator and wife of plaintiff, W. H. Grove, and Annie P. Brett, infant child and heir of another of testator’s daughters, all his other children and devisees having died intestate' and childless.
But pending this litigation another action was instituted by Ora Grove, W. H. Grove and Amanda J. Buford, plaintiffs, against William P. Brett, guardian of Annie P. Brett, the infant being made also defendant, in which a judgment for conveyance of the land by commissioner of court to Amanda J. Buford was asked in order that she might make a good title to her vendees. Accordingly, judgment was rendered divesting Ora Grove, her husband, W. H. Grove, and Annie P. Brett of all title to and interest in the land, and for conveyance by commissioner to Mrs. Buford, which was done. And thereafter, she having executed and tendered
The decisive question in this case thus arises whether judgment in the action of Ora Grove, etc., plaintiffs, against William Brett, guardian, etc., defendants, was effectual to divest Annie P. Brett of her title to the undivided half of the land. The plaintiffs in that action state, in addition to facts we have recited, that all the estate of G. Y. Buford has been divided and settled between his devisees except, perhaps, a part of personal property; that the land in controversy was sold for a good price and all it is worth in market; that it can not be advantageously divided between the widow and two devisees, and that it would be to their interest, especially that of the infant, to let the sale made by Mrs. Buford stand.
In an amended petition they state the land for several years yielded but little income; that division would greatly impair the value of each share, and it would be to the interest of Annie P. Brett to have it sold and her part of proceeds invested.
Chap. 14, Title 10, Civil Code, relates to sales of real property of persons under disability, and the lirst section, being numbered 489, provides that a vested estate of an infant or of a person of unsound mind in real property may be sold by order of a court of equity in the conditions therein particularly and precisely mentioned. And, as neither the statute nor public policy authorizes or permits such sale made except by order of a court of equity, it is plain the attempted sale by Mrs. Buford, though made in good faith, was a nullity, and, if so, it logically follows the lower court was without au
It may be the sale in this case was, under the circumstances, proper, and to the interest of the infant, but it is always sufficient reason for reversing a judgment that it is without authority of the law. Besides, to sanction such a departure from the statute as this would lead in many instances to destruction and loss of the estates of helpless infants and persons of unsound mind, for where a private sale has been made there would be generally sufficient pressure brought to bear by those interested in confirming it to show the court it ought to be done.
There might be a case where, in justice to a purchaser in good faith, a judicial sale, though not made in strict compliance with the Civil Code, should be confirmed if the interest of the infant would not be prejudiced, and in good conscience it ought to be done; but we know of no rule of law or right empowering a court of equity to confirm a private sale by an unauthorized person of an infant’s real estate. In our opinion, defendants were not required to accept the deed of Mrs. Buford.
Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion.
