Parker v. Hawkins

Opinion op the Court by

Judge Williams :

Nannie Parker, an infant, owns about thirty-seven acres of land in Payette county, to which she derives title through the last will and testament of her grand-father Hezekiah Ellis, dec’d. Certain other persons’ heirs-in-law and devisees of said-Ellis have contingent interest in said land depending upon the death of said Nannie before- she marries or reaches the age of twenty-one years. The particular persons who may take such interests cann'ot now- be determined, on account of the non-happening of the event upon which the same depends. By an ex parte proceeding in the Eayette Circuit Court under the provisions of the 86th chapter of the Revised Statutes, H. S. Parker, -the statutory guardian of said Nannie procured a judgment' directing the sale of her said land for the purpose of reinvestment, and at the sale made under this judgment, the appellee Hawkins became -the purchaser at the price of eighty-five dollars per acre. He failed to make the cash payment or execute bonds for the deferred payments as required by the judgment, and in response to a rule to show cause why he should not be compelled to complete bis purchase, he sets up various reasons, tbe substance of all of which is that the proceedings by which the judgment whs obtained are so irregular, that tbe court cannot pass -to him a perfect title to the land. Under the provisions of the Act of the General Assembly of August 3rd, 1862, Myers’ Supplement, E. S., page 426, it is lawful for any person holding a present interest in real estate, in tbe manner in wbicb tbe infant Nannie bolds tbe land in question to institute proceedings in tbe proper court of the county in wbicb the same is situated for tbe sale of tbe entire and absolute title thereto. “And if upon tbe bearing of tbe case it shall appear to tbe satisfaction of tbe court, thát tbe interests of all tbe claimants, present and future would be subserved by a sale of tbe entire interest in said real estate, * * * it shall be tbe duty of such court to render a decree accordingly; and tbe purchaser of such estate * * * upon complying with tbe terms of tbe sale prescribed by tbe decree shall be ve'sted with all tbe title of tbe present and future or contingent claimants to said real estate, etc.” Tbe 2nd section of tbe act authorizes ibe proceeding to be prosecuted by tbe owners of tbe present interest, without making the contingent remaindermen parties. And when tbe present owners are infants or married, tbe 4-th section provides that tbe same shall be made in conformity with tbe 86th chapter of the Eevised Statutes.

In all proceedings under this chapter a strict compliance with its provisions has been uniformly required by this court. The act of 1862 authorizes tbe sale of tbe interests of certain classes of remaindermen in certain estates by proceedings to wbicb they are not made parties and in wbicb they have no opportunity of being beard, and it seems to us that in such proceedings at least a substantial compliance with tbe material provisions of the act should be required. In this case, neither tbe petition of tbe appellant, nor the report of tbe non-commissioners upon wbicb tbe judgment directing the sale of tbe land purports to be predicated, states directly or infeventially that tbe interest of tbe claimants of tbe future estate would be subserved by tbe sale of tbe entire and absolute title to the property. Tbe power of the court to make such sale is by tbe statute made to depend upon the fact “That tbe interests of all tbe claimants present and future would be subserved” thereby. No such fact appearing in this record, we are of opinion that the rule against Hawkins was properly discharged. This conclusion does not in any degree conflict with tbe rulings of this court in tbe cases of O’Neal v. Bannon, 4th Bush, 23, and Terrell v. Spence and wife, 3rd Bush, 638. In both of said cases it was alleged and proven that the interest of those who claimed the estate both “present and future" would be subserved by the sale of the entire estate.

Kinlcead & Buchner, for appellant. Harrison, for appellee.

Judgment affirmed.