128 Ky. 117 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
Appellant, Abraham Segal, and appellee, William. A. Reisert, entered into a written contract whereby the appellee agreed to sell, and the appellant agreed
The one question presented is whether or not the wives of Joseph Gall, Charles Gall, and Edward Gall have contingent rights of dower in the property in question. If they have, then the court erred in awarding a judgment for specific performance. If they have not such rights', then the judgment must be affirmed. The proceeding by the tenants in common, in action No. 11,406 in the Jefferson circuit court, was, under section 490 of the Civil Code of Practice, to sell the property because of indivisibility, in order that the proceeds might he divided between the respective owners. In this action the wives were plaintiffs, and joined in the prayer for a sale of the property and a division of the proceeds. The answer in this ease alleges that, while the married women united with their husbands as plaintiffs in action No. 11,406, none of them consented upon privy examination to the sale of the land free from her right of dower, and that no privy examination was made of any of them. Assuming, for the- present, that this allegation is. sufficient to raise the question as to whether or not the dower rights of the married women still inhere in the property, or whether the purchaser at decretal sale obtained a fee simple title, it remains for ns to. examine the effect of the judgment and sale thereunder at the suit of the husbands and their wives. Section 495 of the. Civil Code of Practice, as applicable to the question in hand, is as follows: “If a woman have a vested or contingent right to dower in land ordered to be sold pursuant to the provisions of this chapter, the court, with her consent, to betaken upon privy examination if she he married, and
It is insisted by appellee that the allegation of the answer is not sufficient to raise the question as to whether or not the infirmity in the title which we have. discussed above arises upon the record. In order to bring the matter before our mind, we will again set forth the particular allegation of the answer on this subject: “This defendant admits that said married women united with-their husbands as plaintiffs in said action, but alleges that none of them consented upon privy examination to the sale of said land, free from her right of do’iver, that no privy examination was made of any of them, that said land was not sold free from their respective interests, and that no compensation was made to any of them out of the proceeds of' sale thereof. ’ ’ The Jefferson circuit court, wherein the judgment was had, is one of general jurisdiction, and every jurisdictional fact which the record does
It would seem from" these authorities that, where a collateral attack is made upon a judgment of a court of general jurisdiction, it is not sufficient to simply alle'ge the absence of a jurisdictional fact; but it must be alleged that the record affirmatively shows the absence of the jurisdictional fact. This the answer in the case before us fails to do, and for aught that appears here the record in the case in which the property was sold may affirmatively show that the married women were privily examined, as required by section 495 of the Civil Code of Practice, and, if it does, or it would seem even if it were silent upon the question, it must be conclusively presumed in
The court did not err in sustaining the general demurrer to the petition, and the-judgment is therefore affirmed.