Hill v. Hill

The opinion of the Court was delivered by

Mr. Justice Hydrick.

This action was brought to have a parol partition confirmed by the Court, because some of the parties in interest were and still are minors. The Kolb heirs set up a special defense which appears in the report of the referee, where the facts are clearly stated. The report was confirmed and made the judgment of the Court. The referee finds that, in 1904, an agreement was made whereby the one-sixth undivided interest of the Kolb heirs in the fifty acre tract was set off to them next to their residence and adjoining a tract which they inherited from their father, and the plaintiff, John R. Hill, was to pay them the value of his share in the Hill tract for the Kolb tract, which lay near the Hill residence, for which it is said his father had exchanged an equal quantity in value of the Hill tract near the Kolb residence. He also finds that the agreement was fair and beneficial to all concerned, and that this interest was worth $100 at the date of the agreement, and recommends that plaintiff be required to pay the Kolb heirs that amount with interest from that date, and that their title to the tract near the Hill residence be confirmed in plaintiff. The referee also finds that the value of an interest in the Hill tract at date of his report was $200.

We think the testimony sustains the finding that the agreement was fair and beneficial to all concerned, but we think the Court below erred in fixing the value of the interest at the date of the agreement as the amount which the plaintiff should pay. As no one had authority to make any such agreement in behalf of the minors, and as the plaintiff allowed such a long time to elapse before he called upon the Court to ratify and confirm the agreement, and as it appears that, in the meantime, lands have greatly increased in value, and the interest is now worth $200, the Court in protecting the rights of the infants, who are its wards, will require plaintiff to pay the present value, $200, with interest from date of the referee’s report. We see nothing in the record to estop the adult Kolb heirs from contending that plaintiff should pay the present value.

The judgment of the Circuit C,ourt will be modified accordingly.

Mr. Justice Fraser did not sit in this case.