Craddock v. Smythe

• Decision Date: 16 January 1907
• Citation: 99 S.W. 216
• Parties: CRADDOCK ET AL. v. SMYTHE.
• Court: Kentucky Court of Appeals

99 S.W. 216

CRADDOCK ET AL. v. SMYTHE.

Court of Appeals of Kentucky.

January 16, 1907

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Action by Jessie Smythe against Thomas Craddock and another. From a judgment granting the relief prayed for, defendants appeal. Affirmed.

W. C Herndon and Wm. Lindsey, for appellants.

John W Ray, for appellee.

LASSING J.

Appellee is the owner of a life estate in one-half of a house and lot on Shelby street in the city of Frankfort. The fee in the remaining one-half, and the remainder in the half in which appellee owns a life estate, is owned by appellants. Appellee brought her suit in the Franklin circuit court, alleging that the property is not susceptible of division without materially impairing its value, and that it cannot be used jointly by its owners, and asking for a sale of the property for the purpose of dividing the proceeds. She also asks for an accounting. On final hearing, the court granted the prayer of the petition, and ordered the property sold, and the proceeds thereof divided among the respective owners according to their interests therein. Appellants contend that the trial court had no right or authority to order the sale of said property, and, to test the correctness of his finding and judgment upon this point, they appeal.

There is no disagreement among the parties to this suit as to the facts; the sole question being as to whether or not the court, under section 490 of the Civil Code of Practice had the right to order a sale of the property in question. This court has frequently held that, where there was a life estate in the entire property sought to be sold, or a life tenant or tenant by the curtesy of the entire property, it could not be sold, as it was not an estate in possession, jointly owned by two or more persons. But, in the case of Atherton v Warren, etc., 85 S.W. 1100, 27 Ky. Law, Rep. 632--a case in which the property in question was held jointly by the Warren heirs and one Lee, as tenant by the curtesy of an undivided part--this court held that, as the Warren heirs and Lee were tenants in common, they held a vested estate in possession in the property, and that, as it could not be divided without materially impairing its value, or the value of plaintiff's interest therein, it could be sold. The tenant, by the curtesy in the Atherton Case, had a vested interest in the property, the same as...