Ullery v. Blackwell's Heirs

33 Ky. 300, 3 Dana 300, 1835 Ky. LEXIS 93

• Court: Court of Appeals of Kentucky
• Decided: October 12, 1835
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.,

Joseph Blackwell filed a bill in Chancery against Peter Ullery and many others — some of them described in his bill, as infants — asserting a superior entry for nineteen hundred and sixty two and a half acres of land, portions of which were occupied and claimed by the persons who were named as defendants, under an older grant to Owings and others who were not sued; but how claimed and held, the bill alleges that he did not know-

Blackwell having afterwards died, a bill of revivor was filed in the names of persons styled his heirs.

It appears, that one of those described as his heirs in the bill of revivor, died after it had been filed, and there is no suggestion that his interest survived, nor was there any revival in the name of his heirs.

A guardian ad litem was appointed to answer for the infants; but it does not appear, that he ever filed an answer for any of them, or that they had ceased to be infants when the final decree was rendered against them and others, directing a relinquishment of their claims.

For those irregularities and errors, the decree must be reversed in toto; for it does not appear, that the interest of the several parties were of such a kind as to justify a decree against some, without preparation as to others; and moreover, the defect in the revivor which has been noticed, was material as to all.

We would suggest also, that, except so far as the persons sued appear to have derived legal titles from, the gran-tees, the latter would be proper parties.

Wherefore, without considering any of the many other-objections which have been urged against the decree* it must, on- the grounds herein- suggested, be reversed,, and the cause remanded for further preparation..