15 Ky.L.Rptr. 309, 94 Ky. 336
Court of Appeals of Kentucky.
HOWARD et al. v. SINGLETON et al.
May 9, 1893.
ACTION: Affirmed.
Appeal from court of common pleas, Knox county. To be officially reported. Ejectment by W. A. Howard and others against Mariah L. Singleton and others. There was a judgment for defendants, and plaintiffs appeal. In ejectment, brought in 1892, plaintiffs alleged title in their ancestor, who died in 1869, and ownership and right to present possession in themselves. Defendant denied every allegation except ownership of plaintiffs' ancestor in 1869, and plaintiffs' heirship. Held, that plaintiffs' present ownership was not admitted. Under Civ.Code, � 490, providing for the sale of lands jointly owned by order of a court of equity, though plaintiff or defendant be an infant, the interest of an infant may be sold on the petition of his statutory guardian without making infant party to proceeding. A guardian may institute an action against his infant wards, who are under the age of 14 years, for the sale of their real estate, where the share of each is worth less than $100, and obtain a valid judgment and order of sale without the service of summons on the infants, a guardian ad litem being appointed for them answering for them, and a bond being executed by the guardian to protect their rights. Although a summons on an original petition for the sale of a farm of infants under the age of 14 years is properly served on the infants and their guardian, it is necessary that summons be also served on the infants and their guardian upon the filing of an amended petition asking for the sale of a town lot of the infants, the sale of the lot not having been prayed for in the original petition. The proper service of the summons on the original petition without the service of summons on the amended petition does not bring the infants before the court as to the amendment, so as to authorize an order of sale of the town lot. John T. Hays, J. Smith Hays, and Knott & Edelin, for appellants. Wm. Lindsay and Jas. D. Black, for appellees. HAZELRIGG, J. The appellants, as the only heirs at law of John Higgins, who died in 1869, the owner of a lot of ground in Barboursville, Ky.; brought this suit against the appellees for its recovery. In the first paragraph of their petition they set up their heirship, the seisin and ownership of their ancestor, and the description of the premises. In the second, they allege ownership and the right of immediate possession, and aver that the defendants are in the wrongful possession, to their damage, etc. The answer of each of the defendants denies every allegation of the petition save that of the ownership of John Higgins in 1869, and the heirship of the plaintiffs, and sets up the particular part claimed by each defendant. For this reason it is contended by the appellants that the burden of proof was thrown on the defendants. That, having admitted the facts from which the law infers ownership, they could not then merely deny the ownership. If the only issue in an action of ejectment were one of abstract title, there might be something in this contention, but even then the legal seisin of Higgins in 1869, and the consequent lawful entry and possession of the heirs at that time, are not conclusive evidences of ownership and right of possession in the heirs in April, 1892, when the suit was brought. Suppose Higgins-still living in 1892-had sued, merely setting up his title and rightful possession in 1869, would the admission by the defendants of such facts conclude the question of ownership and right of possession some 20 years later? The plaintiffs must show a right of entry in themselves, and a legal estate in the premises existing in them at the time the suit was commenced. The legal right to the possession as between the parties at the time of the institution of the action was the issue in the case. We do not think that the pleas of the defendants changed the general and well-established rule that the burden was on the plaintiff. In discharging that burden it was developed that the appellants had been divested of the title in question by a commissioner's deed in an action in the Knox circuit court brought in March, 1877, by one Laticia Cain, guardian of the appellant, for the sale of the property and reinvestment of its proceeds. It is contended by the appellants that the record of this old suit, as exhibited by them in proof, shows the judgment of sale to be void as to the appellants, who were then infants under 14 years of age, for the reason that, while they were summoned on the original petition, and a guardian ad litem was appointed, yet on the amended petition, which for the first time sought a sale of the lot now in contest, they were not summoned, and no guardian ad litem was appointed for them, nor was any answer filed for them. The appellees insist that the service of process on the original petition, and the appearance of the infants by their guardian ad litem were sufficient to properly bring them before the court, but it will be observed that the petition only sought a sale of a farm in the country, and not the lot in the town, and it is clear that they were not before the court as defendants, and, if the action was such a one as required them to be made defendants, and so brought before the court, the judgment of sale was void. But this old suit was brought under section 490 of the Civil Code, by the statutory guardian of the infants, in a case where the share of each owner was less than $100. This section provides "that a vested interest in real property jointly owned by two or more persons may be sold by order of a court of equity in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant, if the share of each owner be worth less than one hundred dollars." The proper allegations were set up in the amended petition as to the ownership and value of the lot in contest. The report of the commissioners was made, showing the necessary facts, and a bond executed fully protecting the rights of the infants, the appellees here. The judgment of the court directing a sale recites these facts, and we perceive no irregularity in the proceedings; certainly nothing rendering the judgment void. Construing section 490 it was held in Shelby v. Harrison, 84 Ky. 148, "that the guardian may unquestionably bring an action for his ward, and, upon the conditions therein prescribed, obtain an order of court for the sale of the joint property, without making the ward a defendant." And, although the appellants were named as defendants in the old suit, and not served with process on the amended petition, yet they were fully represented in the action by their guardian, who brought the action, and who was also their mother. The evidence introduced showed a complete divesture of title, so far as the appellants were concerned, and established the ownership and right of possession in the appellees. The premptory instruction to the jury to find for the defendants was proper, and the judgment is affirmed. Ky.App. 1893. HOWARD et al. v. SINGLETON et al. 22 S.W. 337, 15 Ky.L.Rptr. 309, 94 Ky. 336

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