Graham's Heirs v. Kitchen

• Decision Date: 26 April 1904
• Citation: 118 Ky. 18,80 S.W. 464
• Parties: GRAHAM'S HEIRS et al. v. KITCHEN et al.
• Court: Kentucky Court of Appeals

80 S.W. 464

118 Ky. 18

GRAHAM'S HEIRS et al. v. KITCHEN et al.

Court of Appeals of Kentucky.

April 26, 1904

Appeal from Circuit Court, Greenup County.

"To be officially reported."

Proceedings by John and George Graham's heirs and others against Charles Kitchen and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

Bennett & Bybee, for appellants.

R. D Davis, for appellees.

O'REAR J.

Richard Graham was the patentee, under the commonwealth of Virginia of several large tracts of land located now in Carter, Greenup, and other counties in this state. Richard Graham died prior to 1835. His heirs are alleged to have been John and George Graham, who also were dead prior to February 20, 1835, on which date there was approved by the Governor of this commonwealth a special act of the General Assembly of the commonwealth of Kentucky, for the benefit of the heirs of John and George Graham, procured to be passed at the instance of certain petitioners claiming to be such heirs. As the act mentioned is the basis of this suit, it is copied in full herein, and is as follows:

"An act for the benefit of George and John Graham.

"Section 1. Be it enacted by the General Assembly of the commonwealth of Kentucky, that it shall be lawful for the adult heirs of George and John Graham, in person, or by attorney, and for the infant heirs of the said George and John Graham, by their guardian or their next friend, to file a petition in the court of a bill of chancery in the Greenup circuit court setting out what lands they hold from their ancestors in the state of Kentucky, and the situation of the land, and the condition of the title, and it shall be the duty of the court to appoint a commissioner to examine into the condition of the lands, and the titles and their value, and it shall be lawful for the Greenup circuit court, if it shall appear to be to the interest of the said heirs to have said land sold, to decree a sale and appoint a commissioner to make either a public or private sale, on such terms and credits as said court may think most to the interest of the parties, and said court shall distribute the proceeds among said heirs on equitable principles from time to time, and cause the shares of the infants to be placed at interest or paid to their guardian on satisfactory security being given, and the court shall, after confirming any sale or sales, made by the commissioner, cause the land so sold, to be conveyed on the payment of the purchase money, or a lien to be retained in the conveyance for the purchase money. Any conveyance made by the commissioner of the land under its order shall be effectual to pass the estate of said heirs." Acts 1834-35, p. 160, c. 723.

The purpose and scope of the words of this act are now in dispute.

Without setting forth the respective contentions of the parties, we hold that the purpose of the act, as gathered from its context, was to confer a jurisdiction upon the circuit court of Greenup county that it did not then have, to wit, to enable that court to sell all the lands owned in this state by the heirs of John and George Graham, and to convey to the purchasers such title as the heirs had. This was to be done by means of a commissioner to be appointed by that court, who was, by the terms of the act, "to examine into the condition of the lands and the titles and their value," and to make sale thereof, either publicly or privately, as that court might decree. It was not claimed that the lands could not have been divided without disadvantage to their value among the heirs. The contrary would appear to be true, each tract comprising several thousand, and in one instance more than one hundred thousand, acres. Courts of chancery then had not the inherent jurisdiction to sell infants' real estate, merely because it may have been advantageous to the infant to do so (Vowles' Heirs v. Buckman, 6 Dana, 466; Henning v. Harrison, 13 Bush, 723; Walker v. Smyser's Ex'rs, 80 Ky. 620; Meddis v. Bull's Adm'r, 18 S.W. 6, 13 Ky. Law Rep. 767; Elliott v. Fowler, Guardian, 65 S.W. 849, 23 Ky. Law Rep. 1676), nor of adults either, for that matter. Their jurisdiction was statutory, and different in material particulars from that conferred by the act. It was to enable a speedy, inexpensive transfer of these titles in bulk that the heirs desired converting them into money for distribution among the parties in interest, and it was to effect that that the act was passed. It was nowhere intimated in the act that the question of title or right of possession as between the heirs of the Grahams and any adverse claimants were to be, or could be, adjudicated in the proceeding authorized by the act. Some of the lands were described as lying on Red river, then in Fayette county; others on the Big Sandy, then probably in Lawrence. The court judicially knows the great distance and the hardships and delays in travel between these respective counties at that time. We cannot indulge the presumption that the Legislature intended conferring jurisdiction upon the Greenup court to try titles to land lying in other remote counties, when the claimants or possessors were entitled to trials by a jury of the county where the land lay, if the action was in the nature of ejectment or trespass. The state of the general law, and the conditions then existing and above referred to, repel such presumption. Nor does the language of the act admit of it.

But, if we were in doubt on the last point, the matter is made perfectly plain by the interpretation put upon the act by its beneficiaries who had procured its passage. As early as the 7th day of April, 1835, they filed a petition in chancery in the Greenup circuit court, setting forth their names and relation to John and George Graham, deceased, and setting out in general terms that they jointly and in coparcenary owned the title to certain tracts of land in the counties mentioned above, as heirs at law of said Grahams, and reciting that: "During the late session of the Legislature of Kentucky they laid before that honorable body a petition praying for the passage of a special act empowering a commissioner to sell all the lands lying in the state of Kentucky to which they had a joint title. That body, not deeming it consistent with their legislative duties to pass the act as desired by your petitioners, yet deeming their case worthy of further consideration, did pass an act for their benefit, authorizing certain proceedings in your honorable court to effect the desired sale. *** In pursuance of the provisions of said act, your petitioners will proceed to set forth their title to a part of the lands they own in the state of Kentucky. Their limited information will not permit them at this time to set forth their title to all the lands to which they believe themselves entitled. They therefore hope that if further investigation shall discover to them other lands to which they may have a valid claim, that they may be permitted to amend this their petition, and that such lands, as well as those hereinafter named, may under the orders of this honorable court be subjected to sale."

The prayer of the petition was as follows: "Your petitioners therefore pray that their title to all of the lands above mentioned may be inquired into by a commissioner appointed in pursuance of the act of assembly aforesaid, and that their title thereto may be sold by a commissioner appointed by the further order of this court. They pray for such other and further relief as the nature of the case requires, and equity and the special act under which this proceeding is had will justify, and as in duty bound they will ever pray," etc.

The petitioners were nonresidents of...