|17 Ky.L.Rptr. 1203|
|Court of Appeals of Kentucky.|
|TURNER'S ADM'RS v. TURNER'S HEIRS.|
|Feb. 4, 1896.|
Appeal from circuit court, Bell county.
"Not to be officially reported."
Action by the administrators of J. C. Turner against his heirs for the sale of real property for the payment of debts.
From a judgment confirming a sale, certain parties appeal.
The present record is so arranged as to require much labor in determining the steps taken by the various parties in interest to have the land in controversy sold. The action was originally brought by the personal representatives of J. C. Turner, who owned the land at his death, to have it sold for the payment of debts owing by the intestate. He owned a considerable quantity of land, and it seems from the pleadings only one tract was sold, known as the "James Davis Tract," containing about 100 acres, which brought $2,400. This sale was set aside, and there is no complaint made of that order. After this attempted sale, one of the appellants in this appeal (J. C. King) filed his petition to be made a party, alleging that one Alvis Turner, who was a son of the decedent, had died, leaving a last will, by the terms of which he was made the residuary devisee; and, Alvis having inherited this land, together with the other children of his father, he (King) was interested in the litigation, or the land sought to be sold. He asked for a settlement of the estate of Alvis Turner, and also thought it to the interest of all the parties interested in the land of the original decedent to have the whole sold, in separate tracts or parcels, and asked the chancellor to direct such a sale, and to set aside the sale made of the Davis tract, on the ground of the inadequacy of price. John Mealer, who was one of the administrators of John C. Turner, and was also the statutory guardian of one of John C. Turner's children (T. P. Turner), by his answer and cross petition sought to have the land sold for the purpose of reinvestment, and united with J. C. King in his prayer for that purpose, alleging that he did not know what interest his ward would have after the payment of John C. Turner's debts. King, in his petition, alleged that the personalty of the estate of J. C. Turner was sufficient to pay the debts. John Mealer, the guardian of the infant, died, and C. Hurst was made guardian in his stead, as well as the administrator of John Mealer. Before Mealer's death, the James Davis tract of land was again sold, and on the second sale brought $8,000, the present appellants John C. King and John Mealer, who was the personal representative of J. C. Turner, and guardian of his infant child, being the purchasers. They executed their bonds for the purchase money, and made a payment thereon exceeding $2,000. After Mealer's death, the bonds being due, and unpaid, steps were taken to revive, against his administrator and heirs, and the land was resold to meet the unpaid purchase money, for which King and Mealer had executed their notes, and purchased by one Cavine, the son-in-law of Mealer, for a small sum, and a deed executed. Here, therefore, was a sale of this land, at the instance of the appellants King and Mealer, to pay the debts of the intestate, or, if not to pay debts, on the ground that it would benefit all the parties in interest, and, thus having the sale made, and becoming the purchasers, they are now seeking to set the sale aside on the ground that no title passed.
Under ordinary circumstances, this judgment would be reversed, not on the ground that it was void, but because of the many irregularities in the proceedings. The first sale was set aside at the instance of Mealer and King, and, when the second sale was made, all the parties in interest were before the court, and the title passed, except as to the infant defendant, that Mealer at the time represented as the statutory guardian; and we perceive no reason why the title to the infant's interest did not pass, if the sale was made to pay the debts of his ancestor. That sale was reported and confirmed. There is no appeal from that judgment, and, if there was, the chancellor, if the sale was beneficial to the infant, ought to confirm it. That it is beneficial there can be no doubt, and why the guardian of the infant is now appealing from that judgment it is difficult to perceive. If the sale is declared void, the infant loses the benefit of the $8,000 purchase, *1103 and his guardian will have to refund to Mealer, or to his representative, his proportion of the purchase money paid, leaving the infant with land not more valuable than it seems to have been when the first sale was made, and that was set aside at the instance of King and Mealer. It is argued, in the brief of counsel, that no reference was ever made in the original action for settlement, to take proof of claims, etc. It appears there was a reference, and that a report was made, and the land sold, and, while more was sold than would pay the debts, it is manifest that the chancellor had the right to assume, from the pleadings of all the parties, that it was to the advantage of all to sell the 100 acres as a whole; and these appellants are not estopped to say otherwise, unless the present guardian shows a manifest injustice to the infant,-and this he has failed to do, because the history of the case, as it appears, shows it would be highly detrimental to the infant to order a sale. The chancellor had the jurisdiction to sell, and acted properly in holding the sale valid. Whether King and Mealer's representatives are liable to the infant if Arthur pays $125 an acre for the land, as it is said he contracted to pay, is not a question before us. There is nothing showing that Arthur ever complied with his contract, but the doctrine is well settled that a guardian of an infant cannot speculate on his ward's estate, and himself reap the benefits.
The judgment on each appeal is affirmed.
TURNER'S ADM'RS v. TURNER'S HEIRS.
33 S.W. 1102, 17 Ky.L.Rptr. 1203
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