Dineen v. Hall

Opinion of the court by

JUDGE GUFFY

Reversing.

William L. Ronan instituted this action in the Kenton circuit court against John H. Hall and Frances Hall. It is substantially alleged in the petition that the plaintiff and defendant, Frances Hall, a minor under fourteen years of age, having no guardian, curator, or committee in this *276State, are the joint owners of certain real estate in Kenton county, being parts of lots Nos. 62 and 63 in the city of Ludlow, with a certain house thereon, all of the value of about $3,000, and that the same can not be divided without materially impairing its value. It is further alleged that John H. Hall, the surviving husband, is entitled ■ to curtesy in the undivided one-half of said estate. Plaintiff prayed for a judgment for sale of the property and for the payment of one-half of the proceeds to him and the other one-half to the defendant, Frances: Hall, subject to the curtesy rights of the defendant, John H. Hall. It further appears by affidavit that the said Frances Hall was a nonresident of the State of Kentucky, and a resident of Cincinnati, Hamilton county, Ohio. The defendant John H. Hall filed an answer, in which he admitted each and every allegation in the petition. A warning order was entered against the defendant, Frances Hall, and George M. Keefer appointed warning order attorney for said defendant. On the 2d of June, 1898, the said attorney made the following report: “Undersigned, warning order attorney herein, states that he wrote the defendant, Frances Hall, at her last known place of residence, — Cincinnati, 0.; that said letter was fully prepaid, and that the same had the add'ress of the writer on the same, with directions to return to him in five days if not delivered. He says that said letter has not been returned to him, nor has ha heard from said] defendant. He therefore has no affirmative defense to make to the action. [Signed] •• George M. Keefer, Warning Order Attorney.” Afterwards the cause was submitted, and a judgment of sale rendered, which judgment was executed, and the property sold, and purchased by the appellant at the price of $2,750. Before the sale the property had been appraised at the price of $3,000. Before the *277confirmation of the sale the appellant filed exceptions to> the confirmation of the sale, which exceptions are as follows: “First. No bond was given to the nonresident before the judgment of sale. Second. The report of the warning order attorney was not sufficient to bind the infant, he having not specified that he had examined the papers so as to enable him to ascertain whether or not there was any defense. Third. The father of the infant had a life interest in the estate; therefore the plaintiff in the action and the defendants were not joint owners in possession, as contemplated by section 190 of the Code. Fourth. Because no bond was given under section 197 of the Code.’’ The court, upon consideration, overruled the exceptions, and confirmed the sale, and from that judgment this appeal is prosecuted.

It will be seen from an examination of subsection 5, sec. 59, and section 36, of the Civil Code of Practice, that it was the duty of the warning order attorney to have made a careful examination of this case before making his report.. The report filed in the ease seems to negative the idea that" the attorney had in fact made any examination of the case, but had simply written to the defendant, and had received no answer, nor any return of his letter, and for that reason made no defense. Hence it was error to render a judgment for a sale of the property without a proper report from the attorney.

YTe do not think that either of the bonds referred to in the exceptions were necessary to be executed before rendition of the judgment. The failure to execute said bonds in no wise affects the validity of the judgment herein.

The sale sought in this suit was evidently intended to be procured by virtue of section 190 of the Civil Code of Practice, which reads as follows: “The vested estate in real property jointly owned by two or more persons may *278be 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 shares of each owner be worth less than one hundred dollars. (2) If the estate be in possession and the property can not be divided without materially impairing its value, or the value of the plaintiff’s interest therein.’’ It seems clear to us that the parties in possession of the property were the plaintiff and John H. Hall; the plaintiff owning the fee of half thereof, and the defendant, John H. Hall, owning a life estate in half thereof, the infant defendant being entitled to one-half after the death of the life tenant. In law the parties in possession where the plaintiff and John H. Hall. It therefore follows that no sale could be had under the provision of section -190.

It may be that the judgment of sale rendered by the court is not absolutely void, but it is certainly erroneous; •and as to the confirmation of the sale, even if by the confirmation the title would pass, yet the purchaser might be subjected to many inconveniences, and we are not prepared io say that she might not, by proceedings hereafter instituted by the infant defendant, be deprived of the land.

We are of the opinion that the court erred in overruling the exceptions filed. The judgment of confirmation of the sale is therefore reversed, and the cause remanded, with directions to sustain the exceptions, and set aside the judgment of confirmation, and' for proceedings consistent herewith.