Danforth v. Moss , 90 Ky. 246 ( 1890 )

CHIEF JUSTICE LEWIS

delivered the opinion op the court.

Appellants, heirs-at-law of E. I). Standiford, instituted an action in the McCracken Court of Common Pleas for sale of certain land in that county left by bim at his de'ath, for the causes' and upon grounds provided in section 490, Civil Code; and all the provisions thereby required having been complied with, judgment was rendered for the sale, which was, in pursuance thereof, made by commissioner of court, appellee, Thomas E. Moss, becoming the purchaser. But exceptions having been filed by him were sustained by the court, the sale set aside and the sale bond quashed, upon the ground the court had no jurisdiction.

It appears there had been previously instituted in the Jefferson Chancery Court, county of E. D. Standiford’s • residence at time of his death, an action for division of the lands left by him amongst his heirs, and allotment of dower to his widow; and by proceedings had in that action, such division and allotment of dower was made of the lands lying in that county; but no disposition was made nor judgment rendered in that action respecting the lands lying in McCracken county, the sale of which is sought in this action.

An action for division of land and allotment of dower, which are provided for in chapter 15, title 10, Civil Code, must be brought in the circuit or county court of the county in which the land, or greater part thereof, lies; and the court having acquired jurisdiction for the purpose, might divide or allot dower in lands lying in any other county. But division of land and allotment of dower provided for in chapter 15 does not involve, nor does an action brought for that purpose necessarily comprise, a sale of real property provided for in chapter 14, title 10. On the contrary, for the various causes and purposes mentioned in chapter 14, there may be sales of real property belonging to joint owners, lying even in the same county where other tracts are situated, that they may, by a separate action, have divided.

Subsection 3, section 62, Civil Code, provides that actions must be brought in the county in which the subject of the action is situated for sale of real property under title 10, chapter 14, except for debts of a decedent.

The sale in this .action was not for debts of the decedent, nor did the widow have a claim to dower in the lands, but it was for the purpose of dividing the proceeds among joint owners, it not being practicable to divide the land without materially impairing its value. We think the McCracken Court of Common Pleas had jurisdiction,, and it was error to sustain exceptions to the report of sale; instead, the report ought to have been confirmed.

. Wherefore, the judgment sustaining the exceptions., is reversed, and cause remanded for proceedings consistent with this opinion.