
    CASE 10. — ACTION BY CARTER WILLIAMSON AND OTHERS AGAINST SANFORD MANN TO RECOVER LAND.
    May 21, 1909.
    Williams. &c. v. Mann
    Appeal from Taylor Circuit Court.
    I. IT. Thurman, Circuit Judge.
    Judgment for defendant, plaintiffs appeal. —
    Affirmed in part and reversed in part.
    1. Judgment — Supplemental Judgment — Operation and Effect.— A supplemental judgment entered on tbe next day after tbe case was regularly submitted must be taken as a part of tbe judgment of tbe court as fully as if it bad been entered in tbe original judgment.
    2. Infants — Sale of Land — Equitable Jurisdiction. — Tbe power of a court of equity to sell tbe land ibf an infant is wholly statutory, and, except as provided by statute, tbe chancellor is pow erless to do so, and, when be is without jurisdiction, tbe sale is void.
    
      3. Infants — Sale of Land Under Order of Court — Validity.—Oiv. Code P'rae. Sec. 490, providing that a vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity in an action brought oy either, if each -share is worth less than $100, contemplates a sale of the whole property, and the court was without jurisdiction to sell the undivided interest of infants, subject to a life estate, without compliance with section 493 and other sections designed for the protection of the interests of infants.
    4. Infants — Void Sale of Land Under Order of Court — Estoppel -of Infant by Ratification Thereof. — Where, after an infant became of age, he collected his part of the purchase money arising from a void sale by order of court of his interest in land, and allowed a deed to he made therefor, and tlhe grantee to hold it for many years without asserting claim thereto till it had passed into the -hands -of an innocent purchaser, he was estopped thereby to claim an interest in the land.
    B. A. RICE 'and W. L. YOUNG attorneys for appellants.
    QUESTIONS DISCUSSED AND AUTHORITIES.
    'The proceedings had in suit number 1275, attempting to divest the infants of their title to the land in controversy therein, was void, because it did not conform 'to the provisions of the Code of Practice authorizing a sale of infants real estate.
    1. Because -appellants, who- were -defendants to suit number 1275 in equity, were remaindermen, and therefore were not, nor could not be, in possession of the 24 acres of land as contemplated by section 490 of the Code; because suit number 1275 -was not brought by the joint owners. The said A. H. Williamson and Liouel’la Wlilliamson, (having’ simultaneously with the 'bringing of said suit number 1275, sold and conveyed for a consideraion, one Ms life estate, and the other her interest in same, to William Floyd, and said Floyd was not a party to said suit. Sections 490 and 491 of Code; 112 Ky. R. 373 and 376; Dineen v. Hall, 95 Ky. R. 93; Malone v. Commonwealth, 15 R. 421; 99 Ky. 271; Swearinger v. Abbott, 18 Ky. R. 185; 23 R. 1615; Dineen v. Hall, 26 R. 530; Berry v. Lewis.
    2. The judgment in said suit No. 1275 was void, because no process was served on the infants, who were under the age of 14 years, as required by the Code, so as to get them before tlhe court. The officers return on summons shows that it was served by delivering to each o-f the defendants a copy of same, and the petition in said suit .shows that Carter Williamson was hut six years old, and therefore the court had no authority to decree a sale of said land. Section ,52 Code; 1st Metcalf 145; Davidge v. Cotton, 3 Ky. R. 592; Sawyer v. Guscurth, 94 Ky. 336; Harrod v. Singleton, 16 R. 661; Carr v. Elly, 11R. 6; Warmack v. Low.
    3. All the proceedings in suit number 1275 were void, because all the land ordered sold was not sold, nor was it sold as ordered in said judgment. The records in that case show clearly that only three-fifths of said 24 acres were sold, which left two-fifths unsold, with title in appellants in this case. See commissioner’s report and deed to Floyd, 23 Ky. R. 1676; E'lliott v. Fowler, 98 Ky. 564;. Ogden v. Stephens, 80 Ky. 620; Walker v. Smyser, 112 Ky. R. 376, and cases therein cited.
    H. S. ROBINSON for appellee.
    AUTHORITIES CITED.
    • Black on Judgments, Sec. 197; Black on Judgments, Vol, 1, page 270;Howard v. Singleton, 15 R. 309; Myers v. Pedigo, 24 R. 1923; Kelly v. Wilson, 12 R. 471; Norfleet’s Adm’r v. Logan, 21 R. 1200; Garr, &c. v. Elble, &c., 16 R. 661; Louisville Industrial Exposition v. Johnson, 8 R. 328; Seigal- v. Reisert, 107 S. W. 74.7; 32 R. 901; Dennis et al. v. Alves, et al., 113 S. W. 901; Freeman on Judgments, Sec. 125; Newcomb’s Ex’or v. Newcomb, 13 Bush, 544; 26 Am. Reip. 222; VanFleet on Collateral Attacks, Sec. 855; Black-on Judgments, Sec. 271; Miller v. Farmers Bank, &c., 75 S. W. 218; 25 R. 373; Northington v. Reed, 75 S. W. 206; 25 R. 354; Berry v. Foster, 58 S. ÍW?. 709; 22 R. 746; Gulickson v. Bodkin, 78 Minn. 33; 80 N. W'. 783; 79 Am. St. Repts. 352; Ryder v. Cohn, 37 Cal. 69; Greenway v. DeYoung, 34 Tex. Civ. App. 583; 79 S. W. 603; Rams v. Root, 222 Tex. Civ. App. 413; 55 S. W. 411; Haupt v. Simington, 27 Mont. 480; 71 Pac. 672; 94 Am. St. Repts. 839.
   Opinion of the court by

Judge Hobson

— Affirm-

ing.

Louisa Williamson owned 24 acres of laud in Taylor county which she inherited from her father. She died about 20 years ago, leaving surviving her, her husband and four children, Louella, Adelina, Bruce, and Carter Williamson. This action was brought by Carter, Adelina, and Bruce Williamson against Sanford Mann to recover their three-fonrths of the 24 acres of land and for a division of the tract. Sanford Mann bought the laud from Dr.Wm. Floyd. Dr. Floyd obtained title to it in this way: In the year 1893 A. H. Williamson, the father and his daughter, Louella, who was then of 'age, brought a suit in the Taylor ■ circuit court against the three infant children. It was alleged in the petition that the father Waived and relinquished all his right of curtesy in the land, and that it was owned by the four children, each holding a one-fourth interest in it. It was also, alleged in the petition that the share of each of the owners of the land was of value less than $100, that the land could not be divided without materially impairing its value, and that a sale of it would redound to the interest cf the infants. The process was served. A guardian ad litem was appointed for the infants. He filed his report. Proof wla;s taken, and, the case being regularly submitted on January 7, 1893, the court adjudged the land sold, and directed the commissioner to take a bond for the purchase money payable to himself for such uses as the court might direct. On the next day a supplemental judgment was entered, by which it Was adjudged that the land ordered to be s’old was subject to the life estate of A. H. Williamson, and the commissioner was directed to sell it subject to his life estate, the order reciting that 'his life estate had been conveyed to Dr. William Floyd. Under this judgment the commissioner advertised the sale of the 24 acres of land as directed by the original judgment. At the next term he filed his report showing this fact, and also showing that he had sold three-fifths of the tract of land, and not the whole tract absolutely .or subject to the life estate of A. H. Williamson. The report of the sale was confirmed and the court then directed the cost paid out of the purchase money, and the balance of the fund paid over to the three children, who were made defendants to the action. Bruce Williamson had arrived at age, and his part of the money was ordered to he paid to him. The other two children not having arrived at age, the commissioner was ordered to pay their part of the money to their guardian when the guardian was appointed. After this A. H. Williamson executed ¡a. bond in the Taylor county court as guardian of the two infant children, hut no order was entered appointing him guardian. The commissioner paid him the money coming to them, and he afterward died without making any settlement of his accounts or accounting to them for the money. After this, the land was ordered conveyed to Dr. Floyd, who was the assignee of the purchaser’s hid, and the deed was accordingly made. Dr. Floyd held the land for many years, and afterward conveyed it to Mann, who now holds it. On the .siame day that the suit referred to was filed A. H. Williamson and his daughter, Louella, executed a deed to Dr. Floyd for the land, and covenanted in the deed that they would obtain for him a deed for the interest of the three infant children.

The only question to be determined in the case is whether the sale of the land of the infants in the judicial proceeding above referred to was void. If it was merely erroneous 'and not void, their remedy was to open the judgment; and, as they failed to do this within the time allowed by law, they are bound by it unless it was void. Their action proceeds on the sole ground that the judgment and sale were void. If the original judgment had stood, and 'there had been no supplemental judgment, and the land had been sold under the original judgment, a very different question would he presented. But the supplemental judgment entered on the next day must be taken as a part of the judgment of the court as fully as if it Wad been -entered in the original judgment. The effect of the judgment as thus amended was to direct ■ the commissioner to sell the land subject to the life estate of A. IT. Williamson. The commissioner, as shown by his report of sale, did not sell the land subject to the life estate of A. H. Williamson. He sold an undivided three-fifths of the land absolutely, and the court divided the purchase money between the three infant children. This shows that the whole land was not sold, and that this was so understood at the time. The power of a court of equity to sell the land of an infant is wholly statutory. Except, as provided by the statf ute, the chancellor is without power t'o sell an infant’s land, and, when he is without jurisdiction, his sale is void. By section 490 of the Civil Code of Practice a vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity in an action brought by either of them if the .share of each owner is worth less than $100. The proceeding was evidently brought under this section, but it only authorizes a sale of the property where the share of each owner is worth less than $100. It does not lauthor'ize the chancellor to sell the interest of the -infants alone in the land; for the trarpose of the -statute is that the whole property shall be sold and the proceeds divided so that the loss that might otherwise fall on the infants from the sale of an undivided interest may be avoided. The court was without jurisdiction under this statute to sell 1 hree-fif ths -of the property or to sell the whole property subject to the life estate of A. H. Williamson. The statute contemplates a .sale of the property. There was no effort in 'the proceeding to conform to the provision of any other section of the Code. No bond was executed to the infants as provided by section 493. The commissioner was without authority even under the judgment to sell three-■fifths of the land, and it cannot be told from the record, except by bare conjecture, that the interest of the infant defendants in the land was sold at all. We therefore conclude that the sale was void, and passed to Dr. Floyd no title to the land as 'against the infant defendants except Bruce Williamson. After he was of age, he collected his part of the purchase money, .and, 'after he was of age, he allowed a deed to be made to Dr. Floyd for the land. He allowed Dr. Floyd to hol'd 'it as his own-for many years without asserting any claim to it, and it has now passed into the hands of an innocent purchaser. Under the facts, he is estopped to claim any interest in the land, but the other two plaintiffs, Adelina and Carter, who were infants at the time, are entitled to recover their interest in it.

The judgment as to Bruce Williamson is affirmed, but, as to Adelina and Carter Williamson, the judgment is reversed, land cause remanded for further proceedings consistent with this opinion.  