Est. of Klingensmith

Opinion,

Mr. Justice McCollum:

Stanton Black, the appellant, has an estate as tenant by the curtesy in an undivided one eighth of the land which is the subject of this partition. He was not named in the petition on which the inquest was awarded, and had no notice of the time and place of holding the inquisition. The inquest returned that the land could not be divided without prejudice to or spoiling the whole, .and valued it at $86 an acre. The return was filed and. confirmed nisi, May 14, 1887, and five days after, the appellant filed exceptions to it, and denied the jurisdiction of the court to make partition without having all the parties in interest before it. He did not ask to be made a party to the proceedings that had already been taken. His purpose was to have them set aside on the ground that they were unauthorized by law. At the instance of the petitioner a commissioner was appointed to find and report the facts to the court.

The commissioner reported that Stanton Black had a life-estate in one eighth of the property, and should be made a party to the proceedings for partition, and this report the court approved March 80,1888. This report did not make appellant a party to the proceedings, nor validate them. It brought on the record, and to the knowledge of the court, a fact which demonstrated that the proceedings were unlawful, and required that they be set aside. Nothing further was done until April 13, 1889, when the usual rule on heirs, including and naming Stanton Black, was issued. The appellant accepted service of this rule, and filed additional exceptions to the inquisition, setting forth, inter alia, that the property was worth $300 an acre, or $20,000 more than the valuation placed on it by the inquest. He asked the court “ to take off the confirmation of the inquest and valuation, and refer the matter back to the jury for a revaluation.” The exceptions were dismissed, the court helow holding that the appellant had made himself a party to the proceedings by accepting service of the rule on heirs, and that although the land had advanced more than 200 per cent since the valuation by the inquest, he was bound by it.

■ In this view of the case it will be seen that the appellant, in his effort to set aside an illegal proceeding, has confirmed it, and subjected himself to a loss of $150 per annum during his life. Of course the accuracy of an appraisal cannot be assailed on the ground of the subsequent appreciation of the property, but where some of the parties in a partition have a fee simple, and others a life-estate in the land, and, pending the proceedings, it is trebled in value by the discovery upon it of a mine or the like, it would be equitable to order a re-valuation of it. If the property is not brought to a public sale, the only protection the life-estate has is in a fair valuation, and this the court may secure at any time before a decree which transfers the title.

We find no order on this record which makes, or assumes to make, the appellant a party to the partition, prior to April 13, 1889. His acceptance of service of the rule on heirs can have no greater or other effect than a lawful service of it by an officer. His subsequent effort to obtain a valuation of the property, as of the time it is claimed he became a party, did not cure previous irregularities, or want of jurisdiction, because it was of these he was complaining, and on these his application for relief rested. The illegality of the original proceeding still clings to it, and the appellant is not estopped from alleging it. As his claim respecting the value of the property is undisputed, and he was denied an opportunity to substantiate it by evidence, it must be taken as true. It is unnecessary to cite authorities to show that appellant was not bound by the partition proceedings, when he appeared in court to contest them, and in an attitude of resistance there is neither approval nor acquiescence.

The order awarding an inquest is reversed, and all proceedings thereunder are set aside; the costs to be paid by the appellees.