Howard v. Singleton

JUDGE HAZELRIGG

delivered the opinion of the court.

The appellants, as the only heirs at law of John Higgins, who died in 1869, the owner of a lot of ¿round in Barbonrsville, Kentucky, brought this suit *338 against the appellees for its recovery. In the first paragraph of their petition they set np their heir-ship, the seizin and ownership of their ancestor and the description of the premises. In the second they allege ownership and right of immediate possession, and aver that the defendants are in the wrongful possession, to their damage, &c. The answer of each of the defendants denies every allegation of the petition, save that of the ownership of John Higgins in 1869, and the heirship of the plaintiffs, and sets, up the particular part claimed by each defendant. For this reason it is contended by the appellants, that the burden of proof was thrown on the defendants ; that, having admitted the facts from which the law infers ownership, they could not then merely deny the ownership.

If the only issue in an action of ejectment were-one of abstract title there might be something in this, contention, but even then the legal seizin of Higgins in 1869, and the consequent lawful entry and possession of the heirs at that time, are not conclusive evidences of ownership and right of possession in the-heirs in April, 1892, when the suit was brought. Suppose Higgins — still living in 1892 — had sued, merely setting up his title and rightful possession in 1869, would the admission by the defendants of such facts-conclude the question of ownership and'right of possession some twenty years later ?

The plaintiffs must show a right, of entry in themselves and a legal estate in the premises existing in them at the time the suit was ■ commenced. The legal right to the possession as between the parties *339 at the time of the institution of the action, was the issue in the case. We do not think that the pleas of the defendants changed the general and well established rule that the burden was on the plaintiffs. In discharging that burden, it was developed that the appellants had been divested of the title in question by a commissioner’s deed in an action in the Knox Circuit Court, brought in March, 1877, by one Letitia Cain, the guardian of the appellants, for the sale of the property and reinvestment of its proceeds. It is contended by the appellants that the record of this old suit, as exhibited by them in proof, shows the judgment of sale to be void as to the appellants, who were then infants, under fourteen years of age, for the reason that while they were summoned on the original petition, and a guardian ad litem was appointed, yet on the amended petition, which, for the first time, sought a sale of the lot now in contest, they were not summoned, and no guardian ad litem was appointed for them, nor was any answer filed for them.

The appellees insist that the service of process on the original petition, and the appearance of the infants by their guardian ad litem, were sufficient to properly bring them before the court, but it will be observed that the petition only sought a sale of a farm in the county, and not the lot in the town, and it is clear that they were not before the court as defendants, and if the action was such a one as required them to be made defendants, and so brought before the court, the judgment of sale was void. But this old suit was brought under section 490 of *340 the Code, by the statutory guardian of the infants in a case where the share of each owner was less than one hundred dollars. This section provides : “ That a ves led interest in real property jointly owned by two or more persons, 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 is worth less than one hundred dollars.”

The proper allegations were set up in the amended petition as to the ownership and value of the lot in contest. The report of the commissioners was made showing the necessary facts, and a bond executed fully protecting the rights of the infants, the appellants here. The judgment of the court directing , a sale recites these facts,- and we perceive no irregularity in the proceedings; certainly nothing rendering the judgment void. Construing section 490, it was held -in Shelby, &c., v. Harrison, Jr., &c., 84 Ky., 148 : “That the guardian may, unquestionably, bring an action for his ward, and upon the conditions therein prescribed, obtain an order of court for a sale of the joint property without making the ward a defendant.” And although the appellants were named as defendants in the old suit, and not served with process on the amended petition, yet they were fully represented in. the action by their guardian who brought the action, and who was also their mother.

The evidence introduced showed a complete derivation of title so far as the appellees were concerned, and established the ownership and right of possession in the appellees.

*341 The peremptory instruction, to the jury to find for the defendants was proper, and the judgment is affirmed.