Korb v. Stege

• Decision Date: 28 October 1921
• Citation: 234 S.W. 280,192 Ky. 633
• Parties: KORB v. STEGE ET AL.
• Court: Kentucky Court of Appeals

234 S.W. 280

192 Ky. 633

KORB v. STEGE ET AL.

Court of Appeals of Kentucky.

October 28, 1921

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

A. M Marret, of Louisville, for appellant.

Humphrey Crawford, Middleton & Humphrey and Geo. D. Caldwell, all of Louisville, for appellees.

THOMAS J.

On May 11, 1907, Ernest Stege died, a resident of Jefferson county intestate, unmarried, and without issue, and left as his only heirs his father, Christian Stege, and his mother, Elizabeth Stege. He owned at the time of his death a small tract of land situated near Louisville containing 17.17 acres, which was inherited in equal moities by his father and mother. On June 20, 1914, the father, Christian Stege, died intestate leaving his widow and 10 children as his heirs, and at the time of his death he still owned jointly the tract of land inherited by himself and wife from their deceased son, Ernest Stege. After the death of her husband, Elizabeth Stege filed action No. 91449 in the Jefferson circuit court, Chancery branch, First division, to which she made all the heirs of her husband parties and in which it was adjudged that she be allotted as part of her dower interest in all of her husband's real estate a life interest in and to all of his undivided interest in the 17.17 acres inherited by both of them from their deceased son, which made her the absolute owner of a one-half undivided interest in that tract and the owner of a life interest during her life in the other one-half undivided interest.

While the title thus stood as to that tract, and on February 28, 1919, she deeded all of her interest therein to her son, the appellee and plaintiff below, Louis Stege, who in the meantime had purchased from four of his brothers and sisters their interest in the remainder which they inherited from their father in his one-half undivided interest in the entire tract. While thus owning absolutely a one-half undivided interest therein, and a half undivided interest in remainder of the other half, and the life interest of his mother in the latter half, he filed this action against his brothers and sisters, who had not sold their interest to him, one of whom, by inquisition, had been adjudged of unsound mind, seeking to sell the entire tract for purposes of division among the owners according to their respective interest, upon the ground that the tract could not be divided in the required proportions without materially impairing its value.

Such proceedings were had as resulted in a judgment ordering the sale, which was made by the master commissioner as directed in the judgment, and the appellant Edward W. Korb became the purchaser at the price of $5,875. The sale was reported and confirmed, but the purchaser, declining to execute bonds or otherwise carry out the terms of sale, was ruled to show cause why he declined to do so, and he responded by claiming that the judgment, the sale, and its confirmation were each and all void, because the section of the Code, under which the proceedings were taken (490) does not in any of its subdivisions authorize a sale of the property for purposes of division where the title is held in the manner shown in this case, and he asked that the judgment, the sale, and its confirmation be set aside and held for naught, and that he be discharged and relieved from the obligations of his bid. The court upon hearing overruled all of his motions, and he has appealed.

All of the interested parties are adults, and were it not for the fact that one of them was of unsound mind and represented by a committee in this proceeding, the appellant could not complain of any of the matters sought to be raised, since in that case the only one who could object to the character of proceeding would be some one owning an interest in the property sought to be sold. However, the disability of one of the parties referred to confers upon the purchaser the right to make the objections relied on by him, which we will now proceed to dispose of.

Section 490 of the Civil Code, in so far as it is applicable to the questions raised, says:

"A vested estate in real property jointly owned by two or more persons (or owned as set out in subsection 3 of this section), may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant--

1. If the share of each owner be worth less than one hundred dollars.

2. If the estate be in possession and the property cannot be divided...