51 S.W.2d 927 | Ky. Ct. App. | 1932
Reversing.
In June, 1926, Peter Sanders' administrator sued L.M. Soper and his two infant daughters, Eudell and Doris Soper, to collect a $750 note of L.M. Soper and Ida L. Soper, deceased wife and mother. It was alleged that Mrs. Soper had died intestate and no personal representative had qualified; that she "left no personal property out of which this note could be paid"; and that the only estate she left was a certain house and lot in *660 Nicholasville which descended to the defendants and which could not be divided without materially impairing its value. The infancy of the two defendants was set up. No personal judgment was sought against the husband, although a maker of the note, nor against the children to recover assets of the decedent coming into their hands. Judgment against the estate of Mrs. Soper was prayed. The sale of the house and lot, and application of so much of the proceeds that might be necessary to pay plaintiff's debt were asked. Jurisdiction of the infants was obtained in the manner provided by the Code, and a guardian ad litem filed formal answer that he could make no defense. No evidence whatever was taken. A default judgment was rendered upon the pleadings against all of the defendants adjudging that Mrs. Soper had died intestate with no personal estate and was the owner of the house and lot described, which was indivisible without impairing its value. It was adjudged that plaintiff recover of her estate the amount of his note, and that the property be sold as prayed. It was appraised at $3,000 and sold by the commissioner to L.M. Soper for $1,500. He assigned his purchase to P.T. Foster, surety on his purchase-money bond. It appears that a sufficiency of those bonds was paid to satisfy the debt and a lien retained in the deed to secure the balance coming to the infants, which has never been paid.
In December, 1930, Eudell Soper, who was then twenty-four years of age, in her own name and as guardian of her sister, filed suit against Sanders' administrator, L.M. Soper, and P.T. Foster, charging that the note sued on by Sanders' administrator was the debt of their father, and that their mother was only his surety. Proceedings of the former suit were set out and the record made a part of the petition by reference. The validity of the judgment was assailed upon several grounds. The prayer of the petition as amended was that the judgment be set aside and held for naught, the deed canceled, and the property or the infants' interest therein be restored to them. On motion, the original suit was redocketed and the cases consolidated. Demurrers to the petition as amended were sustained, and it was dismissed. Appeals are prosecuted by Eudell Soper, individually, and as guardian of her sister, from the judgment in the original suit as well as in the latter one. We are of the opinion that the original judgment was void, and shall treat the subsequent suit as having the effect *661 of a motion to set it aside. Civil Code of Practice, see. 763. Other issues may be disregarded.
The disposition of an infant's real property is hedged about with legal barriers. Because of a conclusive presumption of incapacity, he is denied the right of disposing of it according to his own wishes. To protect him against the possibility of spoliation or waste, only the chancellor of a court of proper jurisdiction may dispose of an infant's land through the agencies of a court. That power is not inherent. It is derived from the statutes, and its exercise is defined and limited by specific directions, which must be strictly observed. In a word, the court can dispose of an infant's land only in strict accordance with the terms of the statutory laws. They are its sole and only power and single source of jurisdiction. These are fundamental and inexorable principles, expounded and maintained from the beginning of our jurisprudence. Vowles' Heirs v. Buckman, 36 Ky. (6 Dana) 466; Elliott v. Fowler,
"In such an action the petition must state the amount of the debts and the nature and value of the *662 property, real and personal, of the decedent, so far as known to the plaintiff; and, if it shall appear that the personal estate is insufficient for the payment of all debts, the court may order the real property descended or devised to the heirs or devisees who may be parties to the action, or so much thereof as shall be necessary, to be sold for the payment of the residue of such debts."
The petition in this case is fatally defective and was not sufficient to give the court power to order the sale. It ignores some of the provisions of section 428 as to parties, and all of section 429 with respect to the value of property and amount of debts. Even the conclusion pleaded as to the personal property is not that it was insufficient for the payment of all debts, but merely that there was none to pay the debt sued on.
Moreover, a default judgment may not be rendered against an infant. The law traverses all material allegations against him. Section 126, Civil Code of Practice. The court may take judicial knowledge, however, from a description of the property, as in the instant case, that it cannot be divided advantageously. Clay's Guardian v. Rice,
That this judgment is erroneous is free from doubt. The only serious question is whether it is void. The necessity for the determination is that one of the appellants lost her right of appeal one year after reaching her majority if the judgment is only voidable. Section 745 Civil Code of Practice; Hays v. Wicker,
A judgment is void when the court proceeds without authority and in a manner forbidden by law with respect to the matter being adjudicated, although it may have jurisdiction of the parties and of the subject-matter. *663
Lorton v. Ashbrook,
"It is said innocent purchasers at these sales, or innocent purchasers subsequent to the sales, may be injured, may sustain loss, if this rule is adhered to. That cannot be, though, except the parties to the proceeding have shown, and the court has suffered, such a palpable departure from their plain statutory duty as would result in loss to the infant unless this rule stands. It, then, is the question, which should suffer, if either must — the infant whose utter helplessness makes it impossible for him to know, much less to prevent, the wrongful act, or the adult purchaser, whose ripened judgment and experience and sense of caution, prompted by self interest, all make it his duty, as it is his opportunity, to look and to know, before he parts with his money, whether these plain statutory requirements have been performed? Shall such a negligent one, to save himself from loss, which could not have been but for such negligence, be permitted to say to the babe robbed of his patrimony, 'I am the innocent one'? Or, it may be said, it is the sanctity of the judgments of the courts — their stability — that must be upheld. Are the judgments that were made for property rights of more importance than the property rights for which they were made? It is not sound public policy that would tempt perfidy in dealing with infants' estates, or at best condone their neglect by those intrusted with them, and put a premium upon carelessness. That course is better that admonishes alike guardians and purchasers that, before they can devest the infant of his land, they must look carefully, under pain of *664 loss, to a strict compliance with the law. The legislature has provided the manner, and for what purposes alone, an infant's land may be sold. It had the undoubted right to so provide, or even to withhold altogether such right of sale.
"What sufficient reason could be urged upon us to justify our allowing the infant's title to be passed for a different purpose, or in a different manner, than the lawmaking body of the state has seen fit to provide? We can conceive of none. We therefore hold that, when the proceedings show that the statutory ground or necessity for selling the infant's lands do not exist, or where the bond required by the Civil Code of Practice (section 493), has not been executed, the judgment and sale are void. The infant loses no rights under them, and the purchaser takes none."
In Hill v. Adams,
In Hicks v. Winn,
The insufficient pleading and absence of evidence did not authorize the court to render the judgment of sale. Having no power to do so, it follows the judgment is void.
It should be said, however, that in such cases if there was merely an irregularity in the practice which did not affect the power or jurisdiction of the court, the judgment and sale are not void. Clay's Guardian v. Rice, supra.
Wherefore, the judgments are reversed and the cases remanded, with directions to set aside the sale and judgment in the original suit, leaving the parties to take such steps as may be necessary to adjudicate the whole matter.
Whole court sitting.