Skidmore v. Cumberland Valley Land Co., 126 Ky. 576

Skidmore v. Cumberland Valley Land Co.

126 Ky. 576 | Ky. Ct. App. | 1907

Opinion op the Court by

Judge Barker

Affirming.

There was pending in the Harlan circuit court a suit between Mlary Jane Skidmore and the Cumberland Valley Land Company, in which was involved, among other things, the validity of the former’s claim to own an undivided interest in a tract of 600 acres of land in Harlan county, Ky. There were *578other issues in the case, such as claims of damages for trespass in cutting trees, etc., hut the main issue, so far as the case in hand is concerned, was her claim to be the owner of an undivided interest in the land. There can be no question that the litigation was genuine and the controversy a serious one to her. During the pendency of this litigation, she died, intestate, leaving four children, the infant appellants, Willie Skidmore, Robert Skidmore, Victor Skidmore, and Theodore Skidmore, her only heirs at law. After-wards J. F. Skidmore, the husband of Mary Jane Skidmore, was appointed and qualified as guardian of his children, the appellants, and the case was regularly revived in their names as heirs at law of their mother. The litigation then continued for some time. Afterwards the father and guardian of the infants entered into an agreement of compromise with the appellee company, by which it was agreed that the infants were entitled, so far as their rights in the land were concerned, to the claim as set up and sought to be maintained- by their mother, Mary Jane Skid-more, and that they should receive this interest in money; the land being valued at $15 per acre. We do not set out the terms of the compromise minutely; it being conceded by the guardian ad litem, who prosecutes this appeal, that it is a fair one so far as the infants are concerned, and that they, under its terms, receive the full market value of the land claimed by their mother if it was free from any controversy whatever. After this compromise was agreed upon, the guardian, and the children by him, filed a petition in the case they were litigating with the appellee, setting forth the terms of the compromise, that the issues involved were many and doubtful, and that their best interest would be subserved by the compro*579anise in question being carried into effect through the judgment of the court. Some evidence was taken on the merits of the compromise, and, the case having been regularly submitted, a judgment was entered approving its terms, and directing the commissioner of the court to' convey whatever interest the infant appellants had in the land to the appellee. As said before, the guardians ad litem, who prosecutes this action, does not question the merits of the compromise, but challenges the jurisdiction of the court to carry it into effect as was done in this case. Section 2030, Ky. St. 1903, is as follows: “Guardian shall discharge the liabilities of the ward for the debts of the ancestor out of his personal estate, and when the personal estate, with the rents of the real estate is not sufficient therefor, he may, by petition to a court of his county having equity jurisdiction, obtain leave to sell land for that purpose. He shall also receive and sue for the debts and demands owing to the ward, defend actions against him, and, with leave of the court, may compound a debt or demand, or settle or compromise any controversy concerning the lands of his ward when the interest of the ward will be sub-served thereby. ” It will be observed that the language of the foregoing statute, in so far as it relates to the subject in hand, authorizes, the guardian, with the approval of the chancellor, to “settle or compromise any controversy concerning the lands of his ward when the interest of the ward will be subserved thereby.” This is a very broad power, and is conferred upon the guardian to enable him thoroughly to protect the interest of his ward. The protection of the infant against the disloyalty or negligence of the guardian is contained in the provision which requires the approval of the chancellor before the *580compromise can be carried into effect. Now, it is obvious that, in order to settle or compromise all controversies concerning tbe lands of infants, it must necessarily often happen, as in tbe case at bar, that tbe claim of tbe infant to tbe land in question must be released and conveyed to tbe opposing claimant, and, when this happens, tbe statute would be entirely nullified if tbe court did not have a right to carry tbe compromise into effect by a conveyance of whatever claim tbe terms of tbe compromise conceded to tbe infants. This is a most beneficient statute, and but for it or some similar enactment, tbe interest of infant claimants would often be swallowed up and lost in the precarious chances of litigation. We do not think: the absence from tbe statute of words expressly authorizing a conveyance to be made of tbe infant’s property militates against tbe conclusion at which we have arrived. Where a power is expressly and definitely given, it embraces by implication all powers which are necessary to tbe effectual execution of that expressly given. Now, while tbe statute under consideration does not say, in express language, that tbe guardian, or tbe chancellor through bis commissioner, may convey tbe interest of an infant in land involved in litigation and which is tbe subject of compromise, tbe power to compromise an adverse claim is expressly and certainly given; and we think tbe power to convey, in order to effectuate tbe compromise, is fairly implied in tbe authority to make it. Any other construction than this must often jeopardize tbe substantial interest of infants in lands involved in litigation. Tbe case at bar is a fair sample of what might happen in such cases if tbe position of the guardian ad litem is sound. By the compromise made, tbe infant appellants receive subs*581tantially everything their mother claimed, but take it in money, instead of the actual land. If the litiga,tion is to proceed without compromise, it may peradventure happen that an adverse decision to their interest would be rendered, and in the end they wouldy., receive nothing. Certainly it is to their material and substantial interest that this compromise should be made. It is one that any prudent man acting for himself would make in his own behalf, for it eliminates all chance of a total loss by an adverse judgment.

It is inconceivable how the statute could be effectually enforced if there is not implied in the power to compromise an adverse claim in land the power to convey the interest of the infant therein. This proceeding is not under chapter 14, tit. 10, Civ. Code Prac., relative to the sale of the land of infants. There it must be conceded the power to sell and convey the estate of an infant in land must be expressly given in order to clothe the court with jurisdiction to sell. But here is a case where the estate of the infants is denied and is a subject of active and adverse litigation. That they have any estate at all in the land is a question to be determined on final judgment, and is at least doubtful. These facts bring it within the purview of the statute above quoted; and this statute, as we have said above authorizes the release or conveyance by deed of their interest in the subject of the controversy in order that a wholesome and beneficial compromise may be effectuated.

Every interest of the infants seems to have been safeguarded in the proceedings leading up to the judgment approving the compromise and ordering a conveyance by the commissioner of the interest of *582the infants in the land in question, and we are therefore of opinion that the judgment should he affirmed, and it is so ordered.