Davis v. Kinnard , 271 Ky. 646 ( 1938 )

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 satisfaction 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.