153 Ky. 221
Court of Appeals of Kentucky.
SCOTT v. GRAVES et al.
March 28, 1913.
ACTION: Affirmed.


Appeal from Circuit Court, Franklin County.
Action by Addie Graves and others against Lelia W. Scott and another for the sale of property jointly owned by plaintiffs.
From the overruling of his exceptions to the sale, the purchaser J. A. Scott appeals.

CLAY, C.
On February 23, 1896, Elenora Scott died testate a resident of Franklin county, Ky. By her will dated May 10, 1893, and duly probated in the Franklin county court, she devised all of her property to her son, John R. Scott, and provided that, if he should die without legal issue, the property should go one half to her sister, Addie Graves, and the other half should be equally divided between Elenora Veal, Elenora Allen, Docia Scrugham, and Mattie Jones. The will gave her son, John R. Scott, the power to sell any of the lands devised to him, but directed that it should be reinvested by the Security Trust & Safety Vault Company, of Lexington, Ky. At the time of the death of the testatrix, she owned a certain tract of land in Fayette county, Ky. On July 3, 1901, John R. Scott sold the Fayette county land and reinvested the proceeds in a tract of land containing about 70 acres, situated on South Elkhorn creek in Franklin county, Ky. The reinvestment in the Franklin county land was made with the approval of the Security Trust & Safety Vault Company, of Lexington, Ky.

Addie Graves, Elenora Allen, Docia Scrugham, and Mattie Jones all survived the testatrix, and are still living. Elenora Veal, mentioned in the will, died February 29, 1912, leaving as her only heirs her daughter, Elizabeth Bosworth, and an infant grandchild, Mary E. Helburn, the only child of Mary C. Helburn, another daughter, who died August 23, 1912. John R. Scott died January 9, 1912, without legal issue. By his will, which was duly probated in the Franklin county court, he devised all of his property to his wife, Lelia W. Scott. Upon the death of John R. Scott, the 70-acre tract of land in Franklin county, Ky., passed to the following parties in the following proportions: Addie Graves, one-half; Elenora Allen, one-eighth; Docia Scrugham, one-eighth; Mattie Jones, one-eighth; Elizabeth Bosworth, one-sixteenth; Mary E. Helburn, one-sixteenth.

Plaintiffs, Addie Graves, a widow, Elenora Allen, a single person, Docia Allen, a single person, Mattie Jones and her husband, Roger Jones, Elizabeth Bosworth and her husband, Joe F. Bosworth, Mary E. Helburn, an infant under 14 years of age, through and by her guardian, Emil S. Helburn, and Emil S. Helburn, as guardian of Mary E. Helburn, an infant under 14 years of age, brought this action, against Lelia W. Scott and the Security Trust & Safety Vault Company, a corporation, of Lexington, Ky., to sell the 70-acre tract of land in Franklin county, Ky., on the ground that plaintiffs were the joint owners of and in possession of the land, and it could not be divided without materially impairing its value or the value of plaintiffs' interest therein. Defendant, Lelia W. Scott, was made a party because she was asserting a dower interest in the land in controversy. The Security Trust & Safety Vault Company, of Lexington, Ky., answered and said that it had approved of the sale of the Fayette county land and the reinvestment of the proceeds in the tract in controversy, and it had no further interest in the land or in the proceeds. The defendant, Lelia W. Scott, entered her appearance and consented that the property be sold free from her right of dower, and agreeing to look to the proceeds of the sale for any claim that she might have in this respect.

A copy of the appointment and qualification of Emil S. Helburn, as guardian of Mary E. Helburn, his infant daughter under 14 years of age, made in the Bell county court on March 18, 1909, and duly certified by the clerk of the Bell county court, are filed with the petition. On January 11, 1913, Emil S. Helburn executed to the infant plaintiff, Mary E. Helburn, the bond required by section 493, Civil Code, with Joe F. Bosworth and J. E. Evans as sureties. Accompanying the bond are affidavits as to the amount of property owned by the sureties. The bond in question was examined and approved by the judge in open court on January 11, 1913. Proof having been taken on the question of indivisibility of the property in question, the court thereafter entered judgment adjudging that the property could not be divided without greatly and materially impairing its value and the value of the interest of each of the plaintiffs therein, and directing that the property be sold as a whole on January 27, 1913, upon credits of six and twelve months. The master commissioner was directed to make the sale after advertising the time, place, and terms thereof and a description of the property, for at least ten days, including the day of sale, in the State Journal, a daily newspaper published in Frankfort, Ky. The sale took place as directed in the judgment, and James Andrew Scott became the purchaser at the price of $6,240. He filed numerous exceptions to the sale, all of which were overruled. To review the propriety of the court's rulings on his exceptions, he prosecutes this appeal.

1. The first and third exceptions filed by the purchaser are based on the contention that the infant, Mary E. Helburn, was not made a party to the action, except through her guardian; and as she was not made a party defendant to the action, and no guardian ad litem was appointed for her, she was not properly before the court. The petition shows that Emil S. Helburn, as guardian of the infant, Mary E. Helburn, and Mary E. Helburn, through and by her guardian, united in the suit as plaintiffs. It follows, therefore, that the infant, Mary E. Helburn, was properly before the court.

2. The second ground of exception is that the proof is insufficient to show that the property was indivisible, or that it was to the interest of the infant that it be sold. There is in the record the deposition of a party who knew the land and its location. He fully describes the land and testifies to facts showing that the land could not be divided without materially impairing its value or the value of plaintiffs' interest therein. In addition to this evidence, the pleadings and exhibits show that the land consists of only about 70 acres, and is located several miles from town. It is perfectly apparent that it was practically impossible to divide this small tract of land into eighths and sixteenths without materially impairing its value. We therefore conclude that the pleadings and proof on the question of indivisibility are amply sufficient to justify the judgment.

As has been repeatedly held, it was not necessary to allege or prove in the action brought pursuant to subsection 2, � 490, that it was to the interest of the infant that the land be sold.

3. The fourth ground of exception is that the dower interest of Lelia W. Scott was not determined before the land was ordered to be sold. This was not necessary. She was made a party defendant, and filed her answer consenting to the sale. She agreed that the sale might be made free from her claim for dower, and that she would look to the proceeds of the sale for any claim of dower that she might have. The purchaser, therefore, acquired title free from her dower rights.

4. It is next insisted that the sale is invalid because not held on the first day of some regular county or circuit court, and for the further reason that it was not properly advertised, in that no written notices of the sale were posted at the courthouse door and in three other public places in the vicinity of the land for 15 days next preceding the sale. While it is usual to direct sales by the master commissioner to be made on the first day of some regular term of the circuit or county court, there is no provision of the Code or statutes requiring this to be done, but, on the contrary, it is within the power of the court ordering the sale to fix the date of sale.

While, in the case of sales of land under an execution, the posting of written notices at the courthouse door and three other public places in the vicinity of the land is required, there is no provision of the Code or statutes requiring the posting of such notices in the case of sales made by a master commissioner. The only statutory limitation on the power of the court to direct how the sale shall be advertised is contained in section 14a, supra, which provides that such sale shall be advertised in some newspaper published in the county of said sale at least once a week for three consecutive weeks next preceding the day of sale, with a proviso that, where there is a daily newspaper published in said county, publication of such notice of sale for three consecutive days next preceding the day of sale shall be sufficient. We conclude, however, that, in addition to this statutory limitation, the right of the court under section 696 of the Code, supra, to fix the manner of advertising the sale is subject to the further limitation that the advertisement shall be reasonably sufficient to properly advertise the sale. In the present case the sale was directed to be advertised in the State Journal, a daily newspaper published in Frankfort, Ky., for a period of ten days, including the day of sale. The advertisement, therefore, not only complied with the terms of the statute, but we think was reasonably sufficient.

5. The last exception is based on the contention that the judgment of sale fails to provide that the interest of the infant should remain a lien on the land until she became of age.

Section 497, Civil Code, provides:
"1. In the action mentioned in subsection 2 of section 490, the share of an infant, or of a person of unsound mind, shall not be paid by the purchaser; but shall remain a lien on the land bearing interest until the infant become of age, or the person of unsound mind become of sound mind, or until the guardian of the infant, or the committee of the person of unsound mind, execute bond as required by section 493.

"2. The infant upon becoming of age, or the person of unsound mind upon becoming of sound mind, or the guardian or committee of the infant or person of unsound mind, upon executing bond, may receive the proceeds; but if the infant be a married woman, the provisions of subsection 6 of section 494 must be complied with.

"3. The proceeds when received by a married woman shall be her separate property.

"4. The court may permit the guardian or committee, without executing the bond above mentioned, or the married woman, though she be an infant, to receive the interest on the money until it is paid."

Even if there had been no bond executed by the guardian, it would not have been necessary to provide in the judgment that the share of the infant should remain a lien on the land until she arrived at age or until bond was executed. The Code itself so provides, and a provision to that effect in the judgment could not have added any force to the Code provision. Here the bond required, was executed by the guardian before the order of sale was made. Therefore, by the express provision of the Code, the share of the infant no longer remained a lien on the land sold, but was payable to the guardian.

It follows that appellant's exceptions to the sale were all properly overruled.

Judgment affirmed.

Ky.App. 1913.
SCOTT v. GRAVES et al.
154 S.W. 1084, 153 Ky. 221


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