Kendrick v. Kendrick , 27 Ky. 241 ( 1830 )

Chief-Justice Robertson

delivered the Opinion of the Court.

This is a suit in chancery, for the sale of the slaves, which (as the bill alleges) descended to the complainant and others, could not be divided in kind. The bill prayed that all the heirs should be made defendant0. Process was served on all of them, except one. There is an endorsement on one of the subpoenas, purporting to be an acknowledgment of service on him. But there is no proof of -the -genuineness of the acknowledgment. .He did not answer, .nor appear* The other distributees answered and consented to the sale of the slaves. One of them, being an infant, answered by guardian ad 'litem.

The • circuit court decreed a sale of the slaves, and this writ of error is prosecuted to reverse the decree.

The decree is erroneous. The heir who did not answer, was not a party. His interest in the'slaves should not be affected by a decree, unless he had been made a party. ,

■ The Sdihinistrator is a necessary party. The bill ■ does not allege that he had given his .assent, that the heirs should hold the slaves. They may, therefore, yet be assets in his hands*

The act of assembly, (II Dig. 1158) which authorizes a decree for the sale of the slaves, which descend to severaljbetween whom there cannotbeapartition inkind, directs that the bill shall be filed-in the county in which administration had been granted. It is not suggested, that administration was granted by the county court of the county, in which this suit was brought.' It does not appear, therefore, that the circuit court had jurisdiction.

Wherefore, the decree is reversed arid the cause remanded, with leave to amended the bill, and to make the proper parties.