Swearingen v. Abbott

CHIEF JUSTICE PRYOR delivered the opinion of the coubt. 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 the other joint owner. (Malone v. Conn., 95 Ky., 93.) This is not a sale for debt within section 489 of the Code, or a proceeding under 491, but an attempt to sell under 490, because the estate was vested in the infants. Whether or not the title passed by reason of the cross petition of the father is a question of doubt; but the purchaser is complaining, and it is not only proper but essential that these statutes regulating the sale of infants’ realty should be complied with. If the father has a lien, let him enforce it; or, if the joint tenant wants it sold, let her bring the [273] action, and not by the next friend of the infants without an averment bringing the case within either of the sections, of the Code under which the realty of infants can be sold.. Section 490 not only requires that the estate should be vested, but the possession must be with the infants. Here' they have no right to enter because of the life estate in .the father. Reversed and remanded, with directions to set aside the sale and dismiss the petition.