Swearingen v. Abbott
Court of Appeals of Kentucky
Case 48 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Section 490 of the Civil Code requires that the estate owned by the infant in such notions as this must not only be a vested one, but “in possession,” and without that the court had no jurisdiction to order the sale.
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Case 48 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Section 490 of the Civil Code requires that the estate owned by the infant in such notions as this must not only be a vested one, but “in possession,” and without that the court had no jurisdiction to order the sale. (Malone v. Conn, 95 Ky., 95.) 2. 'The answers oí the life tenant and the joint owner should not be construed as equivalent to their uniting in the petition; an answer can not confer jurisdiction where the court did not obtain it ‘by the original petition; and, besides, the answers do not bring…
1Opinion of the CourtChief Justice Pryor
While it is manifest the property in this case is indivisible. and perhaps it is to the interest of the infants that it should be sold, still the proceedings do not follow the provisions of the Code authorizing the sale of infant’s real estate.
It is true the owner of three-fourths of the realty consents to the sale, and the life tenant by cross petition is seeking to subject the realty to the satisfaction of a lien, yet the infants by their next friend could not bring the action because they were not in possession, and although with a vested estate the possession is with the life1 tenant and…
2Cases cited1 opinion
- Malone v. ConnCourt of Appeals of Kentucky · 1893
3Cited by7 opinions
- Cammack v. AllenCourt of Appeals of Kentucky · 1923
- Atherton v. WarrenCourt of Appeals of Kentucky · 1905
- Hatterich v. BruceCourt of Appeals of Kentucky · 1912
- Berry v. LewisCourt of Appeals of Kentucky · 1904
- Whitney v. DorseyCourt of Appeals of Kentucky (pre-1976) · 1937
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