Case 74 — Action by E. W. Blue, &c. against R. M. Waters fob Specific Performance of a Contract for the Sale of Real Estate. — Jan. 30.

#### Blue and Others v. Waters.

APPEAL FROM JEFFERSON CIRCUIT COURT.

Judgment fob Defendant and Plaintiffs Appeal. — Reversed.

Infants — Partition of Real Estate — ¡Not Parties to Original Action — Subsequent Approval.

Held: 1. Though under 'Civ. Code, section 499, infants are necessary parties in partition of real estate held jointly by them and others, yet, though they were not made parties, an adult, to whom part of the land was allotted, having instituted suit for special .performance of her contract of sale to a third person, and they being made parties by cross-petition of the defendant, and their guardian having filed an answer, alleging that the partition was advantageous to them, the chancellor may in such suit, on proof that the partition was equal and just, approve of the partition.

OLIVER PI. STRATTON and J. B. McCORMICK, attorneys for appellants.

The questions to be considered by the court are:

1. Had the Louisville chancery court any jurisdiction to partition real estate at the suit of the executors of a decedent’s estate?

2. Whether or not the heirs of Sarah B. Weller to-wit, Bernard Weller Coldewey and Anton Weller Coldewey, were properly before the court?

3. Was the partition in said suit valid?

(1) It is shown that while John C. Weller and George P. Weller, as executors, had no interest in the real estate, they did, as heirs of Sarah B. Weller have an interest therein and were equally interested therein with all the other defendants, and I take it that where the executors' are also heirs and devisees the court would have jurisdiction to partition the estate. At any rate, all the parties to this suit who were *sui juris,*having accepted said partition are now estopped to question it.

(2) While it is true that the infants were not regularly served with process, the record shows that they were repre*660sented is' said action by their father and guardian, W. G. Coldewey, and it is provided in section 499, Civil Code, subsection 2, that 'in suits for partition of real estate as to persons under disability, that a guardian may appear and defend for his ward, and,

3. In a subsequent proceeding, as is the case at bar, W. G. Coldewey, father and guardian of these children, being before the court by constructive process, and represented by a guardian *ad Mem,*having filed his answer adopting the partition made in the old suit alleging that it was fair and just and to the interest of the infants, the division therein made should stand and thus avoid the expense of another division, especially, as in this case, where there is a large fund ont of which the respective shares could be and were equalized.

AUTHORITIES QUOTED.

See. 2348, Kentucky Statutes; sec. 52, John D. Carroll’s Civil Code; Webber v. Webber, 1 Met., 18; Lloyd v. MoCauley, 14 B. Mon., 535; 80 Ky. Rep., 64; Beverly v. Perkins, 1 Duv., 251; Waters v. Chinn, 1 Met., 499; Hughey, ,&c. v. Sidwell’s Heirs, 18 B. Mon., 261; Cheatham v. Whitman, 86 Ky., 614; Subsec. 4, sec. 83, Bullitt’s Civ.-Code (last Rev. Ed.); Bouv. Law Die., ed. of 1862, vol. 1, p. 50, title, accumulative judgments; sec. 1402, 'Kentucky .Statutes; Hardin, 366; 3 Marshall, 381; 4 Mon., 370; 1 Marshall, 77; 3 Mon., 31; 5 Mon., 355; 6 Mass. R., 421; Tye v. Tye, MSS’. Opin., Sep. 23, 1902, and Locknane v. Hoskins; Smith and Wife v. Payne, 2 Bush, 589 (Oct. 5, 1866) and the numerous cases cited for appellee in that case; 2 Sugden on Powers, 3-4-5-6-154-232, etc., sec. 391, Civ. Code, as to infant’s right to show cause, &c., within twelve months after attaining twenty-one years of age. Allen v. Troutman, 10 Bush, 61; Park v. Bellemger, 10 R., 303.

C. H. SHEILD, ATTORNEY FOE APPELLEE.

In this action by Mrs. Blue and husband against Mrs. Waters, to enforce specific performance of a contract, the appellee, Mrs. Waters, believing that Mrs. Blue could not give her a marketable title, sets up three matters of defects in the title of Mrs. Blue to the property which she contracted to take.

1. That Mrs. Biue acquired her title by devise from her mother to a one-seventh undivided interest in the real estate of her deceased mother (the lot in question being part thereof), which was divided by- a proceeding had in the Louisville chancery court in action No. 27995 of Sarah B. Weller’s Executors v. Elizabeth Blue, &c., and that the court in a suit brought by said executors had no jurisdiction to make the division.

*6612. Because the infant heirs of Sarah B. Weller, to-wit, Bernard Weller Coldewey and Anton Weller Coldewey were not parties to said suit and were never before the court in the *division suit.*

3. Because there being seven equal -parts, 'the executors who wei;e themselves equal owners with the other heirs, caused the real estate to be divided into five parts instead of *seven,*and took out of the personalty a sum equal to the value of the real estate allotted to the five, thus compelling these infant heirs to take in real estate more than they were entitled to, and to pay for such excess out of their proportion of the personal estate, thereby converting their personalty into realty which the -court had no power to do. Authority relied on, Wren v. Gibson, 90 Ky„ 389.

Opinion of the coubt by

CHIEF JUSTICE BURNAM —

Reversing.

We are asked in this appeal to pass upon the sufficiency of the title of appellant Elizabeth Weller Blue to two lots situated on Indiana avenue, in tbe city of Louisville, which were allotted to her in the division of the estate of her mother, Sarah Weller, and which she has contracted to sell to the appellee, Rebecca Maney Waters. Sarah B. Weller, by will, which was duly probated in the Jefferson county court on the 13th day of July, 1900, after making provision for the payment of her debts, devised all the rest of her estate of every kind and description to her seven children, George P. Weller, Laura A. Sullivan, Elizabeth W. Blue, Mary B. Coldewey, John C. Weller, W. L. Weller and R. L. Weller, equally. After the execution of the will, and before the death of Sarah B. Weller, her daughter Mary B. Coldewey died leaving surviving her husband, William Coldewey, and two sons, Bernard and Anton Weller Coldewey, who were infants under 14 years of age. Her sons John C. and George P. Weller were appointed executors of the will. On the 3d day of December, 1900, the executors instituted a suit in equity in the Jefferson circuit court, making the other children and W. *662G. Ooldewey, the father and statutory guardian of his infant children, defendants, in which they alleged that testatrix was at her death the owner of a number of separate parcels of real estate in the city of Louisville, which were specifically described, and the title to which at her death vested in her children and grandchildren as joint tenants; that after the payment of the debts there remained $38,-809.60 in their hands, the proceeds of the personal estate, and a mortgage note for $2,750, and aslred that the entire real property owned by the testatrix should be devised between the four adult defendants and the two infants; and that they should be permitted to retain in money their entire interest in the estate, and to this end asked the court to appoint three commissioners to value and divide the real estate among the defendants, and to report the sum required in cash to make the plaintiffs and defendants equal in the aggregate value of the estate received by them. The estate of the testatrix was divided in this proceeding in accordance with the prayer of the executors, thd real estate and mortgage note being valued by the commissioner at $29,750. The real estate allotted to Mrs. Sullivan was valued at $6,300, and each of the other defendants, in addition to the real estate allotted to them, received in cash a sufficient amount to make their interest equal to the valuation placed on the realty allotted to Mrs. Sullivan. The infants, Anton W. and Bernard Ooldewey, who were not made parties to the proceeding, received, in addition to certain specific real estate, $450; the plaintiffs, John C. and S. P. Weller, were adjudged $6,300 from the cash in their hands; and the balance of it was divided equally amongst the heirs. The lots in this controversy on Indiana avenue were allotted to E. W. Blue, who sold them to the appellee, Rebecca Maney Waters, *663on the 3d day of March, 1902, and who refused to accept and pay for them. Appellants thereupon instituted this suit for the specific enforcement of the contract sale.

Appellee defended, on the ground that the infants, not being parties to the partition suit, were? not devested by the judgment in that proceeding of their title to the lots, and made her answer a cross-petition against the infants and their statutory guardian, whom she alleged were nonresidents of the State, and asked that a warning order be issued notifying them of the proceeding. W. G-. Coldewey filed an answer as statutory guardian, in which, he says that the interest of his- wards was promoted by the allotment of the real estate to them instead of money, and asked that the partition made in the former proceeding be approved and confirmed. Upon final submission, the chancellor held that the title was not good, and dismissed her petition, and to reverse that judgment this appeal is prosecuted. The effect of the judgment in the partition suit was to invest a considerable proportion of the personal estate of the infants in realty.

Section 499 of the Civil Code reads as follows: “A person desiring a division of land held jointly with others or an allotment of dower, may file in the circuit court of the county in which the land, or a greater part thereof lies-, a petition containing a description of the land and statement of those having an interest in it, and the amount of such interest, with prayer for the division and allotment, and thereupon all persons interested in the property, who have not united in the petition shall be summoned to answer on the first day of the next term of the court. (2) The statutory guardian of an infant, committee of a person? of unsound mind, and husband of a married woman, may unite in the petition in the names of and in conjunc*664tion with such infant person of unsound mind, or married woman, and if the petition be against an infant, person of unsound mind, or married woman, the guardian, committee or husband, may appear and defend for them. If they fail to do so, the court shall appoint a. discreet person for that purpose.”

This section of the Code clearly contemplates that, in a suit for the partition of real estate held jointly by infants and adults, the infants shall be parties to the proceeding, either as plaintiffs or defendants, in order to divest them of title. As they were not parties to the original suit filed by the executors against the other heirs and their father and statutory guardian, the judgment of partition in that proceeding was ineffectual to- pass their title to the real estate. But in this proceeding they were made defendants to the cross-petition of the defendant Waters, and are before the court by constructed service of process; and their father, as- statutory guardian, has filed an answer in which he says that the partition; of the real estate in the old suit was fair and advantageous to his wards, and that the investment of a part of their money in real estate was advantageous and beneficial to them. If this answer had been supplemented by other proof showing that the partition was fair and the investment of the money of the infants waá judicious and advantageous to them, the chancellor would have been justified in approving the partition in the old suit. In the case of Land Co. v. Elliott (12 R., 812) (15 S. W., 518), it was held that whilst infants were necessary parties to an action for partition of land held by them as joint tenants, and that a judgment of partition in. a suit to which they were not parties was1 erroneous, their statutory guardian, after they had been brought before the court, might in open court adopt the *665report if the partition was equal and just. We think that the necessary proof showing these facts can be made in this case without resorting to a new suit for that purpose.

For reasons indicated the judgment is reversed, and cause remanded for additional proceedings consistent with this opinion.