Webb v. Webb's Guardian

• Decision Date: 30 November 1917
• Citation: 178 Ky. 152,198 S.W. 736
• Parties: WEBB ET AL. v. WEBB'S GUARDIAN ET AL. [a1]
• Court: Kentucky Court of Appeals

198 S.W. 736

178 Ky. 152

WEBB ET AL. v. WEBB'S GUARDIAN ET AL. ^[a1]

Court of Appeals of Kentucky.

November 30, 1917

Appeal from Circuit Court, Floyd County.

Action by Lizzie Webb, as guardian of Oliver Webb and others, for the sale of lands. From the judgment ordering the sale, and the judgment confirming the sale made, Oliver Webb, having become of age, appeals. Judgment ordering the sale reversed and judgment confirming the sale affirmed.

See also, 176 Ky. 96, 195 S.W. 96.

Thomas and Clarke, JJ., dissenting in part.

May &amp May and W. W. Williams, all of Prestonsburg, and J. P. Hobson & Son, of Frankfort, for appellants.

Smith & Combs, of Prestonsburg, Ed. C. O'Rear, of Frankfort, and Allie W. Young, of Whitesburg, for appellees.

HURT J.

This appeal is from a judgment of the Floyd circuit court, under which certain lands and interests in lands owned by infant defendants in the action were adjudged to be sold, and also from a judgment which approved the report of sale made under the judgment by the commissioner of the court. The appellee Lizzie Webb, as the statutory guardian of Oliver Webb, Maggie Webb, Mary Webb, Troy Webb, Londa Webb, and Willie Webb, was the plaintiff in the circuit court and the named infants were the defendants. The action was under subsection 3 of section 489 of the Civil Code, for a sale of the infant defendants' lands for their maintenance and education. The defendants were all under the age of 14 years, except one, and were in the custody of the plaintiff, who was their mother and guardian. Their father was dead. A summons was served upon the one who was 14 years of age, and a guardian ad litem was appointed by the clerk of the court for the ones who were under 14 years of age, and upon whom the summons was served for them, as provided by section 52 of the Civil Code. After the summons was served, a guardian ad litem to defend the action for all of the infants was appointed by the clerk of the court in vacation, as provided by subsection 2 of section 38 of the Civil Code. Thereafter the court, by an order, approved and confirmed the appointment of the guardian ad litem. Proof tending to support the necessity of the sale was taken upon interrogatories propounded by the plaintiff and upon cross-interrogatories propounded by the guardian ad litem. Before the cause was submitted, the plaintiff executed a bond to the defendants, as provided by section 493 of the Civil Code, and the guardian ad litem filed his answer, in which he alleged that he had carefully examined the case and could not make any defense. The petition sought the sale of a 25-acre tract of land which was jointly owned by the infants. It also sought the sale of the coals, minerals, mineral products, salt minerals, salt waters, fire and potters' clay, iron ores, and stone, which was in and upon the land, and such of the standing timber on the land, not exceeding 10 inches in diameter, as the purchaser might deem necessary for mining purposes or railroads or branch lines of railroads as might thereafter be constructed upon the lands, and divers and sundry other rights, privileges, and easements in and connected with a 377.40-acre tract of land which was owned jointly by the infants. Both tracts of land were inherited by the infants from their deceased father, and the title papers held by the father were filed with the petition.

At the November term, 1909, the cause was submitted, and the court adjudged that the 25-acre tract of land be sold. With reference to the interest sought to be sold in the 377.40-acre tract, the following judgment was entered, describing the thing to be sold:

"The court further adjudges that the undivided one-sixth interest, each, of the defendants, Oliver Webb, Maggie Webb, Mary Webb, Troy Webb, Londa Webb, and Willie Webb, in and to the coal, mineral, and mineral products, all salt minerals and salt water, fire and potters' clay, iron and iron ore, all stone, and such of the standing timber, not to exceed 10 inches in diameter, at the time of mining, as may be, or by the purchaser, his or its heirs, successors or assigns, be deemed necessary for mining purposes, and including timber necessary for railroads, or branch lines thereof, that may be hereafter constructed upon said land, and the exclusive right of way for any and all railroads and ways, and pipe, telegraph, and telephone lines that may hereafter be located on said property by the purchaser, his or its heirs, successors, or assigns, or by any person or corporation under authority of said purchaser, his or its heirs, successors, or assigns, in, of, under, concerning, or appurtenant to the tract of land hereinafter described as tract No. 776, together with the right to enter upon the said land, use and operate the same and surface thereof, and make use of and for this purpose divert water courses thereon, in any and every manner that may be deemed necessary or convenient for mining and therefrom removing or otherwise utilizing the products of the said minerals, and for the transportation therefrom of said articles and the right to use the same, as well for the removal of the products taken from or out of any other land owned or hereinafter acquired by the purchaser, his or its heirs, successors, or assigns, and the right to erect upon the said land, maintain, use, and at pleasure remove therefrom all such buildings and structures as may be necessary or convenient to the exercise and enjoyment of the rights and privileges herein, and in the use of said land and surface thereof by the purchaser, his or its heirs, successors, or assigns, it, its successors or assigns to be free from, and to be thereby released from, liability or claim of damage to the said defendants, their personal representatives, heirs, or assigns, also free access to go upon and over the said tract of land to the purchaser, his or its heirs, successors, or assigns, for the purpose of surveying and prospecting the aforesaid property and interest. That there shall be reserved in the deed made to the purchaser, and is reserved in this judgment of sale herein to the infant defendants, all the timber upon the said land, except that necessary for mining and the purposes hereinbefore mentioned, and the free use of the land for agricultural purposes, so far as such use is consistent with the rights ordered and adjudged to be sold, and the right to use and mine coal for the household and domestic purposes of the said defendants. That there is also reserved in the judgment, and not hereby adjudged to be sold, the dwelling house and the bottom land lying below the Rock Fork road; also two acres of coal back of said dwelling house. No miners' houses are to be built on bottom land, be sold."

The commissioner filed his report of sale, which showed that the 25-acre tract had been appraised at the sum of $500, and was purchased by J. W. Webb for $500, and the interests in the 377.40-acre tract, adjudged to be sold, were appraised at the sum of $3,774, and were purchased by the Gibson Coal & Coke Company for the sum of $3,775. No exceptions were filed to the report, and it was regularly approved and confirmed by a judgment of the court on the 13th day of March, 1910. Deeds of conveyance were executed to the purchasers of the land by the commissioner, under orders of the court, and the deeds were reported and approved. The sale bonds were paid and the proceeds, under orders of the court, were paid over to the plaintiff guardian.

On March 20, 1916, this appeal was first attempted, but was not perfected until June 1, 1917. The cause is now here upon appeal by Maggie Minnix (née Webb) and Mary Allen (née Webb), who have now become 21 years of age and married women, and by Troy Webb, Londa Webb, and Willie Webb, who are yet infants, by their next friend. The appeal was not taken until Oliver Webb had been 21 years of age for more than one year, and the appeal as to him has been dismissed. The appellees are the Gibson Coal & Coke Company, the purchaser of the interests sold in the 377.40-acre tract of land, and the Elkhorn Coal Corporation.

An appeal seems not to have been taken from the judgment directing a sale of the 25-acre tract of land, nor from the order which approved that sale, and hence the judgment directing the sale of the coal and other minerals and privileges attached to their ownership in the 377.40-acre tract of land, and the judgment confirming the sale, will be considered only.

(a) It is insisted that a judgment which orders the sale of anything less than the entire interest which an infant may own in a tract of land, or in such part of the tract as may be adjudged to be sold, is void, upon the ground that the court has no authority to order such a sale, and for that reason the judgment which directed a sale of the various minerals and rights connected with them in the 377.40-acre tract of land, leaving to the infants the surface of the land, was void. This argument is urged upon the provisions of section 489, supra, which authorizes a court of equity to adjudge a sale of a vested estate of an infant in real property for the education and maintenance of the infant, it being urged that that statute does not authorize the court to adjudge the sale of such interests. It is true that courts of equity in this state have no inherent power to adjudge the sale of lands of infants, but the power to do so is purely statutory, and the authority given by such statutes cannot be exceeded. Elliott v. Fowler, 112 Ky. 376, 65 S.W. 849, 23 Ky Law Rep. 1676; Watts v. Pond, 4 Metc. 61; Ewing v. Riddle, 8 Bush, 568; Barrett v. Churchill, 18 B. Mon. 387; Vowles v. Buckman, 6 Dana, 466; Bullock v. Gudgell, 77 S.W. 1126, 25 Ky. Law Rep. 1413; Hicks v. Jackson, 68 S.W. 419, 24 Ky. Law Rep. 218; ...