Wyatt v. Mansfield's Heirs

57 Ky. 779 | Ky. Ct. App. | 1858

' Judge Simpson

delivered the opinion of the court.

As the defendants, James Mansfield and Jane Mansfield, were proceeded against as non-resident infanta, it was irregular to render any judgment in ■the cause until a guardian ad litem had been appointed to defend for them. And -as the suit was brought to sell real estate in which they had an interest, it was necessary, in order that the sale might be valid as to them, that they should have had a statutory guardian, and that he should have appeared and answered, and also have executed such a cove-mint as the statute requires. The sale as to them is absolutely void, and their interest in the real estate did not pass to the purchaser.

Nor did the interest of the children of Nancy E. Baker, deceased, pass by the sale to the purchaser. No covenant was executed by their guardian, until after the sale was made. Now, Hie statute expressly prohibits the sale of infants re<\i estate unless such a covenant he executed, and declares that the sale shall be void. As therefore the sale was void when it was made, so far as their interest in, the real estate was concerned, it would not be made valid by the covenant which was subsequently executed by their guardian.

But there is a still more radical defect in the proceedings, inasmuch as it render's the sale of the land wholly void as to all the infants, and prevents the eale ami conveyance thereof from conferring any ti-lie whatever on the purchaser; to the extent of their interests.

By the Revised Statutes, (page 592,) it is expressly provided, that before a court shall have jurisdiction, to decree a sale of infants’ lands, three commission.ers must be appointed to report, and must report, on ©ath, to the court, the net value of the infants- real and personal estate, and the annual profits thereof. The commissioners were appointed in this case and made a report, but it is evident, from their report, that they only valued the estate which belonged to the infants, as beirs of James W. Mansfield, deceased. The statute requires them to value the whole estate that belongs to the infants; whether ■that has been done or not the report does not state, mor can we determine. They may have some estate derived from other sources, and the commissioners should have stated in their report that they had valued all the estate which belonged to them. Without such a report the court had no jurisdiction to order the salle, and lhe sale as to the interests of the infant heirs was absolutely void.

'Wherefore, the judgment is reversed, and cause remanded with directions to set aside the sale of the land, and for further proceedings consistent with this opinion.