60 Ky. 524 | Ky. Ct. App. | 1861
delivered the opinion of the court :
This was a proceeding to sell infants lands, had under chapter 86, Revised Statutes, 2d vol. Stanton, 304.
The grounds relied upon by Read in the circuit court, and upon which the order seems to have been founded, relate wholly to defects in the commissioner’s report, touching the value and profits of the estate of the infants, and the propriety of a sale of the land, which the chapter, supra, requires to be made before a sale can be ordered.
It is said, that the report neither discloses the extent, value, nor profits of the infants’ estate, nor shows the necessity, in the mode required, of a sale.
In Wyatt vs. Mansfield, (18 B. Mon., 782,) and in Wells vs. Cowherd's heirs, (2 Metcalfe, 515,) it was expressly held, that the commissioners report in such cases should show that the property, therein valued, was all of the real and personal estate belonging to the infants whose lands are sought to be sold ; and that, ydthout such a report, the sale would be void. The report here fails to show that the estate valued and reported by the commissioners was all of the estate of the infants, and comes clearly within the rale laid down in those cases.
In Wells vs. Cowherd, supra, it was said in regard to the report, touching the propriety of the sale of the land, that “without their report upon this point, the chancellor had no more jurisdiction to decree a sale than he would have had if the commissioners had failed to report at all. They are as much required to report whether the interest of the infant requires the sale to be made, as they are to report the net value and annual profits of the estate.” And in view of this imperative requirement of the statute, the court held, that a failure of the commissioners to state in their report whether the interest of the infants required the sale to be made, was fatal alike to the report and sale.
The order appointing commissioners in this case directs them to report, not whether the interest of the infants required a sale of the land, but whether or not it would redound to their interest. And the commissioners, in response to this, say
The word “redound” is required to be stated in the petition, and the word “require” in the commissioners report. The one is not equivalent to the other. Redound signifies to conduce in the consequence, to contribute, to result. Require means, to make necessary, to demand, to ask, as of right. The former is speculative in character, and looks to the future, whereas, the latter expresses a necessity in presentí.
The law requires the guardian to “allege his belief that the sale will redound to the benefit of the infant.” But it likewise declares that, before the court shall have jurisdiction to order such sale, the commissioners shall report, under oath, “whether the interest of the infant requires the sale to be made.” Here is a limit upon the jurisdiction of the court — restricting its power to sell to cases where reports of this kind have been ordered and made — and which can not and ought not, to be disregarded. We conclude, therefore, that the failure to pursue the requirements of the law, in the particulars mentioned, was fatal to the sale, and furnished ample grounds for setting the same aside.
There is another irregularity in the proceedings which it may not be improper to notice. The report is made by commissioners who were appointed some days before what is termed the petition of the guardian was filed. This was certainly premature, because until the application by a statutory guardian, the court had nó right to appoint commissioners to value the wards’ estate.
■No error is perceived in the record to appellants’ prejudice, and the order setting aside the sale is therefore affirmed.