Garth's Guardian v. Thompson

-Opinion of the court by JUDGE WHITE Reversing. Frank Bedford, statutory guardian of Joanna G-arth and •of F. A. Thompson, filed a petition eso parts, in the Circuit -Court of Bourbon county, seeking a division of certain lands owned jointly by his two wards. The court, upon jtroper showing, appointed commissioners to divide and report as provided by the Code. Upon report being filed, [985] Fannie Shropshire, as next friend of the Thompson child, filed exceptions, after the statutory guardian had declined to do so, and then the court appointed a guardian ad litemto represent Joanna Garth, at the request of the statutory guardian, who declined to represent either child as. against the other. Upon trial of the exceptions the court sustained the exceptions, and then directed a division to be made, and a line to be run to conform to his judgment under the proof. The partition made by the court’s commissioners allotted to appellant 51.40 acres, including a tenement house and large barn, and to appellee 44.15 acres,, without any buildings, ‘but with a right of way over the other share to the turnpike. The division, as directed by the court, gives to appellant 51.55 acres, the same land,, substantially, as given by the commissioners, but does not include the barn. To appellee is given 44 acres, including-the barn. The difference in the two divisions is made by slightly changing and straightening the. line dividing the two parcels. From the proof heard on the exceptions, we áre of opinion that there was no error in rejecting the partition made-by the commissioners as inequitable and unequal. The question is then presented, did the court have the right and power to make partition without reference to the-same or other commissioners? For, if the court could not make partition, it will be unnecessary to discuss the question as to whether the division ordered is fair or not. By section 499, Civ. Code Prac., is provided a complete statutory remedy for partition of lands among joint owners. The county court is given concurrent jurisdiction with the-circuit court in such cases. This section provides for the appointment of commissioners to divide the land. Their-report is subject to exception by either party, and may be-rejected or confirmed by the court upon proof as to its986 fairness. But we think it clear that when the partition is sought, and the jurisdiction is obtained under that provision of the Code, whether in the circuit or county court, the provision for commissioners can not be disregarded, and, after they have been appointed and' réport, the power of the court extends only to the approval and confirmation or rejection of the report. If the court rejects the report, a second partition must be had by commissioners, either the same ones formerly appointed, or new ones selected by the court. We are clearly of opinion that in proceedings under section 499, Civ. Code Prac., the court has no power to make partition or specifically direct the commissioners how to make the division. That matter is committed to the commissioners, subject to approval of the court. That .a report by commissioners is necessary, and can not be dispensed with, is shown most clearly by subsection 8, which provides: “Said report and deed shall be recorded in the clerk’s office of the county court, in proper books to be kept for that purpose; and, if the report be confirmed by the circuit court, it and the deed shall be certified by the clerk of that court to the clerk of the county court for record.” In this case the proceedings were ex parte by the statutory guardian, and were under the provisions of section 499. We therefore conclude that, upon the rejection of the report of division, a re-reference should have been had to the same or other commissioners, as the court had no power to make partition except by confirming a report of commissioners. The question of the power and jurisdiction of courts of equity to make partition is not presented, because it is clear that this proceeding was under the Code, and might have been in the county court as well as in the circuit court. For the reasons indicated, the judgment of partition is reversed, and cause remanded •for further proceedings consistent herewith.