Carpenter v. Moorelock

• Decision Date: 14 January 1913
• Citation: 152 S.W. 575,151 Ky. 506
• Parties: CARPENTER v. MOORELOCK et al. STRODE et al. v. CARPENTER.
• Court: Kentucky Court of Appeals

152 S.W. 575

151 Ky. 506

CARPENTER v. MOORELOCK et al.

STRODE et al. v. CARPENTER.

Court of Appeals of Kentucky.

January 14, 1913

Appeals from Circuit Court, Fleming County.

Action by Mamie Strode Moorelock and others and Martin Strode and others against John S. Carpenter.From a judgment for the first-named plaintiffs, defendant appeals, and from a judgment for defendant the last-named plaintiffs also appeal.Affirmed on appeal of defendant and reversed on plaintiffs' appeal.

John P McCartney, of Flemingsburg, for appellants.

J. H Power and Paul Heflin, both of Flemingsburg, for appellees.

CARROLL J.

These two appeals arise on the same record, and will be disposed of together.In 1869Harvey M. Strode owned a life estate, with remainder interest in his seven children, in a tract of land in Fleming county.He conveyed his life interest to John L Parker, who also bought the remainder interest of five of the children, and John L. Strode and Donaldson Strode, two of the seven children, retained their interest in the land.In November, 1875, Donaldson Strode died intestate, and left surviving him four children; viz.: Mamie Strode Moorelock, Estella Strode Keller, George Strode, and Alice C. Adamson, all of whom were under 21 years of age.In December, 1875, Parker brought suit in the Fleming circuit court to have sold the two-sevenths interest of John and Donaldson Strode.In that suit the only defendants were John Strode, who owned a one-seventh interest, and George Strode, one of the children of Donaldson Strode.The other three children of Donaldson Strode were not made parties to this action.A judgment was rendered directing a sale of the land, and Parker became the purchaser at the sale.Harvey Strode, the owner of the life estate, died in 1906, and in 1910 this suit was brought against John S. Carpenter, then owner of the land by Martin Strode and Barbara Dalton, only heirs at law of John L. Strode, to recover a one-seventh interest in the land, and by Mamie Strode Moorelock, George Strode, Alice C. Adamson, and Estella Strode Keller, children of Donaldson Strode, to recover an undivided one-seventh interest.The lower court held that, as Mamie Moorelock, Alice Adamson, and Estella Keller, children of Donaldson Strode, were not parties to the suit brought by Parker, they were not divested of their interest in the land, which was three-fourths of one-seventh, and gave judgment in their favor for this quantity of the land.He further held that John Strode, who owned one-seventh interest, and George Strode, who owned as son of Donaldson Strode one-fourth of one-seventh interest, were divested of their interest by the judgment, as they were parties to the suit.From so much of this judgment as found that the three children of Donaldson Strode owned and were entitled to their interest in the land Carpenter appeals, and from the judgment holding that John Strode and George Strode were divested of their interest by the judgment in the suit of Parker they appeal.

It will be observed that at the time the suit was brought Parker owned the fee in five-sevenths of the land, and John Strode and the four children of Donaldson Strode owned jointly two-sevenths interest in remainder, subject to the life estate of Harvey Strode, which was also owned by Parker.The Strodes contend that the suit of Parker did not divest them of their interest in the land, and therefore they should have judgment for two-sevenths, as Harvey Strode, the life tenant, was dead; while Carpenter insists that the proceedings in the suit of Parker divested the Strodes of all interest in the land, and therefore their petition should be dismissed.Carpenter also pleaded and relied on the statute of limitation as a bar to the action, this plea resting on the ground that the action to recover the land was not brought for more than 30 years after it was sold in the suit of Parker.

The suit was brought under chapter 63, art. 2, of the General Statutes of Kentucky 1883, which were then in force, reading in part as follows: "Real estate or any interest therein, owned by one or more persons, either of whom is an infant *** or a nonresident of this state, when the share of each owner is of the value of not more than $100, may be sold by a judgment of the circuit court of the county in which the land, or part of it lies, upon the petition of any or all of the owners; but those not joining as plaintiffs must be made defendants and be brought before the court."It appears that in the suit brought by Parker against John and George Strodethey were proceeded against as nonresidents, and the nonresident attorney filed a report stating that he had written to and received a letter from John Strode, who was at the time an adult, saying that he had no defense.The report also stated that George Strode had not been heard from.At the sale made in this suit the two-sevenths interest was sold for $100, which was paid to the commissioner, but it is set out in the pleadings in this case that neither John Strode nor George Strode ever received any part of the purchase money.So far as the judgment of the lower court, giving to the three children of Donaldson Strode, who were not parties to the suit of Parker, their interest in the land, is concerned, we think no serious question can be raised.Their interest in the land was sold under a decree of court in a proceeding to which they were not parties, and it is plain that the judgment as to them was void.Persons who own title to land cannot be divested of it in a judicial proceeding to which they are not parties.Robinson v. Carlton,123 Ky 419, 96 S.W. 549, 29 Ky. Law Rep. 876;Shaefer v. Gates, 2 B. Mon. 453, 38 Am. Dec. 164;Ratterman v. Apperson,141 Ky. 821, 133 S.W. 1005;Kellar v. Stanley,86 Ky. 240, 5 S.W. 477, 9 Ky. Law Rep. 388.

Nor is the plea of limitation interposed by Carpenter available, either as to these three persons or as to John or George Strode.All of these parties owned only an estate in remainder, subject to the life estate of Harvey Strode.Harvey Strode did not die until 1906, and not until then did the right of action accrue.There was no adverse holding by Harvey Strode or any person owning the life estate under him until the life tenancy terminated by the death of Harvey Strode.Jeffries v. Butler,108 Ky. 531, 56 S.W. 979, 22 Ky. Law Rep. 226;Bransom v. Thompson,81 Ky. 387;Ratterman v. Apperson,141 Ky. 821, 133 S.W. 1005;Ray v. Thomas,140 Ky. 570, 131 S.W. 503;Penn v. Rhoades,124 Ky. 798, 100 S.W. 288, 30 Ky. Law Rep. 997.

A more troublesome question is presented by the assertion of John and George Strode to an interest in the land.Although they were brought before the court by constructive service, and although they did not receive any of the purchase price for which their land was sold, and although there may have been irregularities in the proceedings, we would not hold the judgment void if the court had jurisdiction to order the sale.If, however, it did not have jurisdiction, the judgment must be declared void both as to the infant and the adult.It has been definitely settled in this state that a court of chancery has no jurisdiction to sell the real estate of infants unless the authority conferring jurisdiction can be found in the statute, and this is true whether the infant is before the court by personal or constructive service.In other words, in no state of case can an infant be divested of title to real estate by the judgment of a court unless the court had jurisdiction of the subject-matter of the action.Elliott v. Fowler,112 Ky. 377, 65 S.W. 849, 23 Ky. Law Rep. 1676;Walker v. Smyser,80 Ky. 620.

Whether an adult, who is before the court by personal service, can be divested of his title to land by the judgment of a court that did not have jurisdiction of the subject-matter of the action, is a question not necessary to decide on this record.Here the adult was not before the court by personal service hence the precise question upon this point to be decided is, Will an adult, who is a nonresident of the state, and only before the court by constructive service, be...