Henning v. Harrison

• Decision Date: 23 April 1878
• Citation: 76 Ky. 723
• Parties: Henning v. Harrison, & c.
• Court: Kentucky Court of Appeals

76 Ky. 723

Henning v. Harrison, & c.

Court of Appeals of Kentucky.

April 23, 1878

APPEAL FROM LOUISVILLE CHANCERY COURT.

BYRON BACON FOR APPELLANT.

The court below erred in overruling the appellant's objections, as purchaser, to the confirmation of the sale because the proceeding under which the sale was adjudged (under chap. 63, Gen. Stat.), did not conform to said chapter, in that the required covenants to married women and infants were not executed; the commissioners were not appointed, etc.; and also in that the sale was in contravention of the will of Mrs. Flournoy, under which the parties derived title.

GEORGE B. EASTIN FOR APPELLEES.

1. The act of March 14, 1851 (Acts 1851, 461) authorizing Mrs Flournoy to make a will, is not in conflict with section 32 article 2 of the constitution of this state.

2. A court of equity had jurisdiction to sell separate estates of married women under section 17, chapter 47 of the Revised Statutes, for reinvestment, etc.

3. The proceeds of the sale are to be reinvested, and therefore a bond and commissioner's report are not required by article 6, chapter 63, General Statutes, under which the sale was adjudged. (Paul v. Paul and wife, 3 Bush, 483; Griffith v. Burton and wife, 5 Bush, 358; Terrell, & c. v. Spence and wife, 5 Bush, 637.)

OPINION

COFER JUDGE:

1. We entertain no doubt of the validity of the will of Mrs Flournoy, and as that point seems not to be insisted on we need not elaborate it.

2. The proceeding was under article 4 of chapter 63, General Statutes, and the object was to sell the property and reinvest the proceeds. In such a case the proceedings are only required to conform to the provisions of article 3 so far as is necessary. Under that article the appointment of commissioners is required; but even there the failure to appoint such commissioners does not render the judgment void or affect the title of the purchaser. It is only when the required bond is not given that the judgment is void, so that if it should be held that a report of commissioners was as necessary in proceedings under article 6 as in proceedings under article 4 (and we incline to the opinion that it is as necessary in the one case as in the other), still the title of the purchaser will not be affected by the failure to appoint such commissioners.

In this case the sale was made for reinvestment, and there was no necessity for a bond. The proceeds of the sale will not go into the hands of a guardian or husband, but will be paid into court and be invested by a commissioner, and in such a case there exists no necessity for a bond, and the judgment directing a sale was valid without it. (3 Bush, 483; Ib. 637; 5 Bush, 361.)

3. But the chancellor had no power to decree a sale of the interest of Mrs. Harrison. There are only three states of case in which the sale of the real estate of a married woman can be adjudged under the provisions of chapter 63, General Statutes, viz: 1. The estate of an infant married woman, as provided in article 4; 2. When a married woman owns an undivided interest in land not susceptible of division, or when a division would materially impair its value (sec. 6, art. 5); and 3. When her interest is in remainder or is contingent (art. 6).

The interest of Mrs. Harrison does not belong to either of these classes. She is not an infant; she does not own the land as joint tenant, tenant in common, or coparcener with others; and her interest is neither contingent nor in remainder.

The chancellor has no inherent power to decree the sale of the real estate of...