Vowles' Heirs v. Buckman

Decision Date09 June 1838
Citation36 Ky. 466
PartiesVowles' Heirs <I>vs.</I> Buckman.
CourtKentucky Court of Appeals

Mr. M. D. McHenry for appellants: Mr. C. A. Wickliffe for appellee.


Judge MARSHALL delivered the Opinion of the Court.

THIS was an action of ejectment, upon the joint and several demises of the heirs of Thomas Vowles, against William Buckman. It was proved, on the part of the plaintiff, that Thomas Vowles, the father of the lessors, had died in possession of the land in controversy, claiming under several deeds purporting to convey the title to him in fee simple; and that, at the commencement of the action, and up to the time of the trial, the defendant was in possession, claiming by purchase under a decree of the Nelson Circuit Court. For the purpose of showing that the defendant claimed under the title of Vowles, the plaintiffs' counsel read a record of the Nelson Circuit Court, purporting to contain the history of a petition and the proceedings thereon, in the names of the heirs of Thomas Vowles, of whom seven are stated to have been then infants, praying for a decree for the sale of the home plantation of their deceased father, and containing the report of a sale and conveyance of the same by a commissioner, to the defendant, under the order of the Court.

Upon this evidence, the Court, at the instance of the defendant, instructed the jury that, if they believed all the evidence, they should find for him; which they accordingly did. And a judgment having been rendered in pursuance of the verdict, an appeal is prosecuted, for its reversal, mainly upon the ground that the instruction above stated, was erroneous.

The evidence certainly conduces to prove that Thomas Vowles had title which descended to his heirs and remains with them, unless transferred by the proceedings contained in the record above referred to. The question upon the correctness of the instruction, resolves itself, therefore, into the enquiry whether that record proves that the lessors have been divested of their title. And this depends upon the conformity of the proceeding evidenced by the record, with the statutory prescriptions which were attempted to be pursued. For it needs neither argument nor authority to prove, that the Court had no right, except so far as it is specially authorized by statute, to make itself the instrument of transferring title to land, and especially the title of infants, upon an ex parte application, and merely in obedience to the will, or with a view to the interest, of owners. And as the jurisdiction and authority of the Court, in assuming such an instrumentality, is special and limited, it is obvious, upon well settled principles, that so far as the validity of the transfer attempted to be thus made, depends upon the action of the Court, it can only be sustained by showing that the case was within the special jurisdiction conferred on the Court, and that it had a right to act upon it.

The proceeding now in question was instituted under the statute of 1813, entitled "an act vesting jurisdiction in the Circuit Courts, to authorize the sale of the real estate of infants in certain cases," (Stat. Law, 806,) and must stand or fall by a comparison with the provisions of that statute.

The land now in question appears to have descended to the heirs in whose names the petition purports to have been filed, and of whom some appear to have been infants. So far a case is shown, in which the Court might act. But the jurisdiction of the Court does not attach, under the statute, unless the case is brought before it by the petition of the guardian of one or more of the infant heirs, stating that, in his opinion, the sale of their land will redound to their advantage, and supported by his affidavit of the truth of the facts set forth in the petition. The propriety of this provision, and its...

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