Davis v. Kinnard

Court of Appeals of Kentucky (pre-1976)

Davis v. Kinnard

113 S.W.2d 4, 271 Ky. 646, 1938 Ky. LEXIS 32

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedJanuary 25, 1938

StatusPublished

This text of 113 S.W.2d 4 (Davis v. Kinnard) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. Kinnard, 113 S.W.2d 4, 271 Ky. 646, 1938 Ky. LEXIS 32 (Ky. 1938).

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Opinion

Opinion op the Court by

Chiep Justice Stites — -

Affirming.

This is an appeal from a judgment of the Madison circuit court under which certain real estate belonging-to the appellants was ordered to be sold for the satisfac *647 tion of a mortgage given to the appellee. Appellant S.. F. Davis owned an undivided one-third interest, subject to the life interest of his mother, in one of the tracts mortgaged, and the remaining two-thirds interest belonged to other persons. Appellants’ joint tenants were-not joined in the suit. It is asserted that the appraisers appointed to determine the value of the various properties mortgaged did not take into consideration the life estate in appellant’s one-third undivided interest and. that a number of contiguous lots likewise mortgaged were appraised as one tract instead of being valued, separately.

It seems obvious that the other persons having an interest in the same tract in which appellant S. F. Davis owned an undivided one-third interest in remainder were not necessary parties. The interest of one coparcener or joint tenant may be sold without making the-others parties to the action. Newman’s Pleading & Practice, 3d Ed., vol. 1, sec. 178a; Johnson v. Jacob, 74 Ky. 646, 11 Bush 646; Sneed’s Heirs v. Waring, 41 Ky. 522, 2 B. Mon. 522.

No exceptions were filed to the commissioner’s report of sale, and the court confirmed the sale and directed the execution of deeds to the purchaser. Even, if it be conceded that the action of the appraisers was. improper and that they should have appraised appellant’s one-third interest apart from the life estate and. each of the building lots separately, their actions would, at most have rendered the sale voidable, and, in the absence of proper exceptions to the report of sale, the-questions are not before us. Caudle v. Luttrell, 183 Ky. 551, 209 S. W. 497; Fidelity & Columbia Trust Co. v. White Const. Co., 258 Ky. 475, 80 S. W. (2d) 550.

Judgment affirmed.

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Opinion op the Court by

Chiep Justice Stites — -

Affirming.

This is an appeal from a judgment of the Madison circuit court under which certain real estate belonging-to the appellants was ordered to be sold for the satisfac *647 tion of a mortgage given to the appellee. Appellant S.. F. Davis owned an undivided one-third interest, subject to the life interest of his mother, in one of the tracts mortgaged, and the remaining two-thirds interest belonged to other persons. Appellants’ joint tenants were-not joined in the suit. It is asserted that the appraisers appointed to determine the value of the various properties mortgaged did not take into consideration the life estate in appellant’s one-third undivided interest and. that a number of contiguous lots likewise mortgaged were appraised as one tract instead of being valued, separately.

It seems obvious that the other persons having an interest in the same tract in which appellant S. F. Davis owned an undivided one-third interest in remainder were not necessary parties. The interest of one coparcener or joint tenant may be sold without making the-others parties to the action. Newman’s Pleading & Practice, 3d Ed., vol. 1, sec. 178a; Johnson v. Jacob, 74 Ky. 646, 11 Bush 646; Sneed’s Heirs v. Waring, 41 Ky. 522, 2 B. Mon. 522.

No exceptions were filed to the commissioner’s report of sale, and the court confirmed the sale and directed the execution of deeds to the purchaser. Even, if it be conceded that the action of the appraisers was. improper and that they should have appraised appellant’s one-third interest apart from the life estate and. each of the building lots separately, their actions would, at most have rendered the sale voidable, and, in the absence of proper exceptions to the report of sale, the-questions are not before us. Caudle v. Luttrell, 183 Ky. 551, 209 S. W. 497; Fidelity & Columbia Trust Co. v. White Const. Co., 258 Ky. 475, 80 S. W. (2d) 550.

Judgment affirmed.

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113 S.W.2d 4, 271 Ky. 646, 1938 Ky. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-kinnard-kyctapphigh-1938.

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