Case one of two
292 Ky. 27, 143 A.L.R. 1087
Court of Appeals of Kentucky.
TUGGLE et al. v. DAVIS et al.
Oct. 20, 1942.
Rehearing Denied Dec. 8, 1942.
ACTION: Reversed with directions.


Appeal from Circuit Court, Knox County; B. B. Snyder, Special Judge.

Action by H. B. Tuggle and others against Blanche Davis for partition of land. From a judgment denying partition, plaintiffs appeal.

STANLEY, Commissioner.
This suit is prosecuted by two brothers and a sister against another sister for partition of 210 acres of land in Knox County. A special chancellor adjudged the land could not be fairly divided among the four owners because of the existence of coal and the probability of gas underneath it. The case is before us for review on the appeal of the plaintiffs.

Before considering the evidence, it is well to note the rights and obligations or burdens of the parties in establishing their respective contentions. Ky.Rev. Statutes, 381.120 (� 2348, Ky.Stats.) declares that "Joint tenants may be compelled to make partition." Judicial partition is authorized and the proceedings defined by Section 499 of the Civil Code of Practice. This provides that any owner desiring a division shall file a petition, having certain allegations, against his co-owners and pray judgment therefor. The factor of impairment of value does not here appear. But partition implies equality. So it is provided in Section 490 of the Civil Code of Practice that "if the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein," jointly owned land may be sold by order of a court of equity in an action brought by an owner of a vested estate therein. Section 494, subsection 7, of the Civil Code of Practice declares that if one party objects to a sale of jointly owned land his share shall not be sold but set apart to him and the rest of the land sold, if such division and sale can be made without materially impairing the value of the property or of the interest of the parties therein. In this suit the plaintiff, although seeking only a partition, alleged that the property could be divided without materially impairing its value or the value of any interest therein. The defendant denied the allegation and by counterclaim sought a sale for a division of the proceeds. She further affirmatively averred that the property could not be so divided, and asked its sale. Without the allegation in the petition of susceptibility of division, undoubtedly the burden rested upon the defendant to prove her allegation and establish the fact that a division could not be had without impairment of value because Sections 525 and 526 of the Civil Code of Practice prescribe that a party holding the affirmative of an issue must produce evidence to prove it, and places the burden of proof upon the party who would be defeated if no evidence were given on either side. That is the technical rule. However, the practical rule, somewhat in disregard of the technical rule, requires that it be proven that land which prima facie is susceptible of partition among joint owners cannot be divided without injuring or prejudicing the interests of others. Public policy favors a division of land in kind rather than of the proceeds unless substantial injustice will result even though one or more of the owners prefer a sale to a partition. This rests upon the ground that partition does not disturb the existing form of inheritance, as in the instant case, or compel a person to sell his property against his will.

We examine the evidence under the influence of this attitude as to the burden. The tract was devised to these parties by their father, who died in 1885, subject to the life estate of their mother, who died in 1939. It is regular in shape and divided in the center by a valley through which run the double tracks of the L. & N. Railroad Company, a county road, and a creek. The testimony as to the quantity of bottom land varies from 8 to 30 acres. There is a scrubby second growth of timber on the mountain sides. There are no improvements. The preponderating testimony is that in this vicinity a small parcel, with a building site and a little land capable of being cultivated, sells more readily and to greater advantage than a tract as large as 210 acres. The inconvenience and expense of providing cross-overs seem to be taken care of in a contract with the Railroad Company made long ago. As far as the surface is concerned, there is no doubt that the land may be fairly and equitably divided among the four owners. In fact, before the suit was filed there had been an oral agreement to partition. A surveyor laid it off into four parallel rectangles, giving each a part of the bottom land, which seems to be practical and fair, although the defendant expresses the view that it is not. The appellant, Henry B. Tuggle, owns property adjoining on the east, and the plaintiffs prayed that his part be set off next to his other land. Although denying fair divisibility, the defendant in her answer and counterclaim referred to this tentative or proposed partition and alleged that it had been agreed that Henry should have the portion adjoining his present land and that she should have first choice among the three parcels; that she had chosen Parcel No. 2, but the plaintiffs had refused to carry out their agreement. In this pleading she states that she is ready to accept that parcel even though the division would impair the value of the property and of her interest therein. The plaintiffs in their reply asked judgment approving the award of Lot No. 1 to Henry, and prayed that commissioners make allotments to the two sisters or that they draw for the parcels, the other brother, Ralph, being willing to accept what was left. Thus, the real difference between the parties is only whether the defendant should have first or second choice among the three parcels after Henry's part is cut off.

On both sides of the valley there is a seam of coal, called the "Blue Gem," which appears to be present throughout Knox County. The evidence places the thickness of this seam to be from 18 to 26 inches. It is pretty well shown to average about 24 inches, and to be of good quality, with a solid heading of sandstone. An adjoining land-owner mines the vein for domestic uses, as is quite generally done in the county. There are a few wagon or truck mines getting out the coal for local consumption. But the thinness of the seam makes it too costly for general commercial development. During the first World War mining the vein was profitable, but it is testified that since then several efforts to do so had resulted in financial failure. The coal could be mined by modern mechanical contrivances, operated by electricity, but the process at this point would be too costly.

There is another vein of coal on the land, called the "North Jellico," which lies about 80 feet above the Blue Gem seam. An experienced mining engineer expressed the opinion that there are about 70 acres of the North Jellico coal lying on both sides of the valley. This coal about 42 inches thick and could probably be developed commercially according to the defendant's proof. If it could, it would be more advantageous to lease the entire property as a unit rather than to have it divided into small parcels. However, there is substantial evidence to the effect that on this land the North Jellico seam is faulty, and a little evidence that some years ago an attempt to develop it proved unsuccessful. At any rate, no lease of the coal has ever been sought and there are no prospects of any development any time in the near future.

It is said that gas lies under all of Knox County but that is disputed. There is a producing gas well about two miles away on one side of this property and another three or four miles distant on the other side, and there is evidence that this land lies in substantially a straight line between them. Some years ago during a drilling boom, a well was drilled within 200 or 300 yards of this land and a showing of oil was obtained, but the well was abandoned as unproductive. The witnesses differ as to whether these producing wells are "big" or "little," and there is no geological evidence tending to show this is probably oil or gas land. This indefinite evidence establishes only a springing hope rather than a reasonable expectancy. As it has been with reference to the coal, it does not appear that any one has been interested in leasing this property for oil and gas development. The opinions are conflicting whether four parcels of approximately 50 acres could be more advantageously leased than the entire 210 acres.

As stated, the judgment of nondivisibility rests upon the opinion that "the land probably has gas in paying quantities underneath it, as well as one workable seam of coal." To sustain the judgment the appellee relies upon the abstract rule that mining property is deemed not susceptible of partition by area, because of likely detriment to the interest of one or all of the owners, where there is an apparent uneven distribution of the minerals or only a conjecture that the division would be uniform in character and value; particularly so of known oil and gas land because such minerals are fugitive in nature and uncertain in place. Our application of the rule has been to facts different from the present.

In the coal land cases it was not shown that the coal was unworkable for substantial commercial purposes or some other controlling factor or condition was presented. In Leslie v. Sparks, 172 Ky. 303, 189 S.W. 463, partition was denied and a sale ordered where the principal value of the land was two undeveloped coal seams and there was only one available house site. Of like class is Napier v. Napier, 233 Ky. 304, 25 S.W.2d 735. The cases are distinguishable from the case at bar for in them there was no proof of the extent or location of the coal or of the important factor of probable non- development in a substantial degree. In Trimble v. Kentucky River Coal Corporation, 235 Ky. 301, 31 S.W.2d 367, coal leases had been executed to persons who had no interest in the surface of the land, and the joint owners were numerous. It appeared to be practically impossible to make an equitable division in kind.

In each of our cases involving oil and gas property, it will be found that the land was under lease or there had been a severance of part or all of the estate in such minerals from the estate in the surface and the interest of the owners of the surface would have been affected, at least speculatively, by partition. Union Gas & Oil Company v. Wiedeman Oil Co., 211 Ky. 361, 277 S.W. 323; Trimble v. Kentucky River Coal Corporation, supra. The application of the rule as to non-divisibility of oil and gas lands is clearly exemplified in Warfield Natural Gas Company v. Cassady, supra, where one company owned a 2/10 ths interest in the coal and another a 3/10 ths interest in the gas, and there were several owners of the surface and the remaining interest in the minerals. The property was in proven territory and the difficulties encountered in an attempt to divide it in kind, as suggested and stated in the opinion, led to the conclusion that the property of necessity should be sold rather than partitioned. That is far from this case.

The rule in respect to non-divisibility of land containing minerals has its correlative, obviously. It is of general acceptation that partition of mining property will be decreed whenever it is possible to divide it without great prejudice to any of the owners. 36 Am.Jur., Mines and Minerals, � 205. Thus, as is said in Willis's Thornton on Oil and Gas, � 436:
"Where the mine has not been opened, the right to partition of land having upon it solid minerals has been recognized; and it will be decreed unless the mineral is so situated that a probably fair division of it cannot be made by dividing the surface of the land. All things being equal, as between a partition and a sale, a partition will be decreed."

And in Section 437 of that excellent work: "There is no doubt that an action of partition lies to divide undeveloped and supposable oil or gas lands, just as it does in case of lands containing solid minerals; for it cannot be known, owing to the peculiar character of gas or oil as a mineral whether the land to be divided is actual gas or oil lands; and to refuse partition on the theory that it may be, would be for the court to enter upon the domain of mere speculation or supposability."

In the instant case, we are of opinion that the existence of oil and gas is too speculative to be given consideration. The existence of coal is certain, but the possibility of development upon a substantial commercial scale is remote. Since, as we have above outlined, any of the joint owners has a legal or, as is sometimes said, an inherent right, if it be practical, to have his interest in property set aside to himself so that he may become the sole owner of his separate and segregated parcel, unless it is proven that such division would injure or greatly prejudice the right of the other owners; and since the sole defendant and her husband, who contingently object to partition by their pleading, concede divisibility, subject to their quite selfish condition of being given first choice, we are of opinion the judgment should have ordered partition instead of a sale.

The judgment is reversed with directions to adjudge a partition, the mode and procedure to be determined by the chancellor under the pleadings.

Ky.App. 1942.
TUGGLE et al. v. DAVIS et al.
165 S.W.2d 844, 292 Ky. 27, 143 A.L.R. 1087

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Case two of two
Davis v. Tuggle's Adm'r
178 S.W.2d 979
March 3, 1944.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County; Harvey Parker, Jr., Special Judge.

Suit by Blanche Davis and another against Susie D. Tuggle's administrator and others, charging decedent with waste in management of a life estate and with violation of a trust established by the will of James T. Tuggle, deceased, and for other relief. Judgment of defendants, and plaintiffs appeal.

STANLEY, Commissioner.
When James T. Tuggle met his death in July, 1885, he left a will devising his property to his wife, Susan Tuggle, for her lifetime, with either the whole or the unconsumed remainder to his children. The will is not clear whether the widow had the right to encroach upon the corpus or was required to maintain it subject to the power of reinvestment. After the mother's death in 1939, her daughter, Mrs. Blanche Davis, and her husband, J. Leonard Davis, brought this suit against her two brothers and a sister, and one of them as the administrator with will annexed of their mother, charging her with waste in the management of the father's estate and a violation of the trust established by his will, particularly in the sale of certain portions of the land and the timber on part of it. The plaintiffs claimed that the mother had been indebted to the plaintiff Blanche Davis by reason thereof in the sum of $3,200. The petition also sought to set aside as fraudulent and preferential the conveyance to her sons of a tract owned by the mother individually, and prayed that a lien be adjudged against that land to secure plaintiffs' claim. A settlement of the mother's estate was also asked. We have had a previous suit between these parties concerning the partition of the land remaining unsold. Tuggle v. Davis, 292 Ky. 27, 165 S.W.2d 844, 143 A.L.R. 1087.

A very large record was built up in this case, the special Judge observing that more than one-half of it consisted of incompetent, irrelevant and immaterial questions and answers. We agree. The court adjudged that the widow had the power and right under her husband's will to use any part of the corpus of the estate she needed in order to maintain herself and children and to educate them, and that such portions of the property as was sold and the proceeds not divided at the time among the children had been needed and used for those purposes. It was further adjudged that Mrs. Davis was entitled to her one-fourth divisible share in her father's estate remaining after the payment of her mother's debts and funeral expenses, it being found that all the property the mother had at her death had been acquired under her husband's will.

One of the defenses interposed to this suit is that the plaintiff, Mrs. Davis, is barred by a previous judgment construing her father's will in the same manner that the court construed it in this case. We do not find it necessary to pass upon the construction of the will, being of opinion that the plea of res adjudicata is sustainable.

In November, 1928, a suit for a declaration of rights and a construction of the will of James T. Tuggle was filed in the Knox Circuit Court by Susan Tuggle, the widow, against her children. It was stated that $750 had been recovered of the L. & N. Railroad Company for the negligent burning of a house on the land and that $556.42 was left for disposition after payment of an attorney's fee and expenses. The petition set up the will by a full description and attached a copy as an exhibit. It alleged that the widow was entitled to receive this money to be used for her maintenance and support, but that some of the heirs were claiming and demanding part of the money. The prayer was for a construction of the will and a declaration of rights. It was general and not confined merely to the particular fund. The judgment recites that it was being rendered upon the pleadings and exhibits and that the question involved the construction of the will, which 'settles the question as to the use and control of the money mentioned in the petition realized for the loss of the house located on the real estate. It is, therefore, adjudged by the court that the plaintiff under the will is entitled to receive and use the money as her own and for her own benefit, and it is further adjudged that if it is necessary for her expenses in the way of support and maintenance that she use said money mentioned herein above, namely, $556.42, which is ordered to be paid over to her as said executrix, and should there be any portion remaining of same at the time of her death that it be equally divided among the children of James T. Tuggle, testator.'

It is argued that if it should be held that the defendant, now appellee, Mrs. Davis, was before the court and the court had jurisdiction of the parties, the judgment construed the will only in relation to the disposition of the particular fund arising from the burning of the house and did not involve the proceeds from the sale of timber or the land itself.

On the last proposition we can see no difference. The money was not income. It continued to be part of the corpus. It is an important principle in the doctrine of res adjudicata that one cannot maintain two suits on an indivisible cause of action. The construction of this will in relation to the respective rights of the widow and children in a part of the corpus of the estate certainly applied to all of it. I

It is vigorously contended that Mrs. Davis was not before the court and knew nothing about the previous suit. She and her husband so testified, but their testimony is of little or no competency in the face of the record. Mrs. Davis was named as one of the five defendants. The original summons has been lost. The Clerk had endorsed on the petition that a summons and five copies had been issued on November 8, 1928. There is no entry on the step docket of the service of any of the process but this is not controlling, for it appears that in more than one-half of the cases no such entry was made. There is, however, this entry on the equity docket: 'Executed by handing a true copy of this summons to Blanche Davis, this 10th day of November, 1928. L. F. Ball, S. H. C., By H. Noe, D. S.' The same entry appears on the docket used in 1928 and in 1929. It is explained that the initials 'S. H. C.' meant the sheriff of Harlan County, and it is shown that L. F. Ball was then sheriff of that county, and that the defendant, Mrs. Blanche Davis, lived there. The same record shows that a sister, Mrs. Conn, was served in Garrard County where she lived. It is pointed out in the argument that there is an absence of any record of the other three defendants having been brought before the court. One of them was a nonresident of Kentucky. It is argued that because of the absence of a showing that at least one of the defendants had been served in Knox County, that the court had no jurisdiction over the other two who may have been served out of the county. No answer was filed in the case by any one. There is as much parol evidence that Mrs. Davis was before the court and knew about the case as there is to the contrary. All of this, however, goes out. Likewise the deductions and inferences based upon omissions from the record.

It is the legal presumption that a judgment is valid. The integrity and value of the administration of justice rests largely upon this principle. The presumption embraces the element of jurisdiction over the parties, acquired through regularity of the processes of the court and service thereof. The strength of the presumption increases as the years go by. He who questions the validity of a judgment bears the burden of overcoming the presumption and establishing his impeachment of the record. The absence of jurisdiction must affirmatively appear of record and cannot be established by extrinsic evidence. The absence of the original summons is not of controlling importance in this case. It would be evidentiary and conclusive unless there was on it an affirmative showing of no service upon the party or unless destroyed by a direct attack. In its absence we have the conclusive presumption of proper service. The difficulty of proving a negative in the absence of that document is realized; but in this case the record supports the affirmative presumption. We have the endorsement on the petition that a summons was issued for Mrs. Davis, for she was one of the five defendants. Such entry is not required by any statute, so absolute verity is not imported, but it is of value as secondary evidence and entitled to more weight than parol testimony to the contrary. More than that, we have entries on the docket of the service of the process upon Mrs. Davis, which entries are declared by Section 670, of the Civil Code of Practice, to be evidence of the service of the summons if such document is lost, and without evidence of error or fraud so clear and convincing as to destroy all the strong presumptions surrounding such quality of evidence, the entries are conclusive. There was some effort made to prove the entries on the docket were irregular, if not fraudulent, but it is unavailing because it is without pleading and without substance.

We are of opinion, therefore, the judgment should be and it is affirmed.

Ky. 1944
DAVIS v. TUGGLE'S ADM'R
178 S.W.2d 979, 297 Ky. 376



     

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