
    Holbrooks, et al. v. Mineral Development Company, et al.
    (Decided January 25, 1924.)
    Appeal from Letcher Circuit Court.
    Partition — Defendants Held Entitled to Object to Division. — On death, of wife, her child and husband each inherited an undivided interest in a 78-acre tract. Later the husband conveyed 59 acres, describing it by metes and boimds. A company claiming through such conveyance subsequently brought suit, asking that the land be equally divided between it and the child, the immediate grantors being named defendants for the purpose of obtaining damages for deficit. Held, such grantors could object to report of commissioners, and complain that tlie child’s portion was worth more than the portion allotted to the plaintiff.
    R. MONROE FIELDS for appellants.
    D. D. FIELDS and JOHN M. COOK for appellees.
   Opinion of the Court by

Judge Thomas

Reversing.

On'January 15,1904, Arch Jenkins and wife conveyed to John S. Webb and his wife, Drusilla J. Webb* (spelled in the record “Druciller”), jointly, a tract of land in Letcher county containing 78 acres. Some time thereafter Drusilla J. Webb died intestate, leaving as her only child and heir at law, Leon P. Webb, who inherited her undivided interest in the tract and became a joint owner of it with his father, John S. Webb. After the death of Drusilla J. Webb, her surviving- husband married the defendant, Liza C. Webb, and they on August 31, 1907, conveyed to America Plolbrooks 59 acres of the 78 acre tract describing it by metes and bounds, and Mrs. Holbrooks and husband conveyed it to the Mineral Development Company on the 17th day of July, 1917. At the same time Mrs. Holbrooks conveyed other land to the development company adjoining the 59 acres, but the latter tract was conveyed by separate description.

Before December 21, 1917, the development company discovered that Mrs. Holbrooks, under her deed from John S. and Liza C. Web'b, obtained title to only a one-half undivided interest in and to the 59 acres (being the interest of John S. Webb) and that her deed to it conveyed only a one-half interest, the other half being owned by Leon P. Webb as sole heir to his mother, Drusilla J. Webb, and on that day it filed this equity action in the Letcher circuit court averring the above facts and prayed that the 78 acre tract be equally divided between it and Leon P. Web’b, quantity and quality considered, and that if in such division it was allotted less than 59 acres, then that it recover from its vendors, who were made parties defendant to the action, damages for the deficit, to be measured by the consideration paid by it for the whole 59 acre tract on the warranty contained in the deed of the Holbrooks to it, and that commissioners be appointed for the purpose of making the division. A guardian ad litem was appointed for the infant joint owner, Leon P. Webb, and he filed a report in which he admitted the condition of the title and the facts as alleged in the petition, and stated tbat be conld make no affirmative defense for bis ward and asked tbat tbe latter’s interest be protected.

Tbe Holbrooks filed an answer and made it a cross-petition against tbeir vendors and tbeir co-defendant, Leon P. Webb, and asked tbat tbe division be made as prayed in tbe petition, averring tbat an equal division of tbe 78 acres, according to value and quality, would result in allotting to tbe development company, their vendors, practically, if not entirely, tbe 59 acres, tbat they bad conveyed to plaintiff. Tbe court appointed commissioners to make tbe division and they in due time filed a report in which they allotted to the development company 41.7 acres of tbe 78 acre tract lying adjacent to its adjoining land, and to Leon P. Webb, the remaining 36.3 acres.

Mrs. Holbrooks and her husband filed exceptions to tbat report and asked tbat it be set aside on tbe ground tbat tbe land allotted to tbe infant defendant was superior in quality and value to tbat allotted to tbeir warrantee, tbe Development Company, and tbat tbe infant’s portion, as allotted, was worth at least as much as $1,000.00 more than tbe portion allotted to the plaintiff. The bearing of the exceptions was continued and tbe parties were given leave to take proof thereon. Tbe exceptors took tbe depositions of four witnesses who were landowners in tbe vicinity, three of whom were entirely disinterested, and all of them testified, tbat tbe portion allotted to tbe infant was worth anywhere from $800.00' to $1,500.00 more than tbe portion allotted tbe plaintiff, and there was no testimony to tbe contrary. After those depositions were filed the exceptions were submitted and the court overruled them and confirmed tbe commissioner’s report and directed tbat deeds be made to tbe respective parties for the portions of tbe land therein allotted, and from tbat judgment this appeal is prosecuted.

There is nothing in tbe order of court, or anywhere in the record, suggesting tbe grounds upon which tbe court acted in overruling tbe exceptions, and we are left entirely to surmise and speculation to discover tbe reason therefor. It may be tbat tbe court was under tbe impression tbat tbe Holbrooks bad no right to complain of the division, or file exceptions to the report of the commissioners, but tbat supposed reason is to some extent weakened when we consider tbat tbe court allowed them to file tbe exceptions and gave them time in which to take proof sustaining them. If, however, tbat was tbe court’s reason, we think it was unfounded because the exceptors were not only parties to the litigation, but they were directly interested in seeing that their vendee obtained its full proportion of the tract of 78 acres, and to have that portion contain as much of the 59 acres conveyed by them as the facts authorized. That being true, the only question before the court on- the trial of the exceptions was one of fact, and, as we have seen, the proof thereon was all one way and wholly uncontradicted, which left no alternative to the court but to sustain the exceptions and order a redivision to be made either by the same commissioners or by new ones appointed by the court; or perhaps it might hear proof and allot to plaintiff additional land to the 41.7 in the commissioners’ report sufficient to make the quantity given it equal yn value to the remaining portion to be allotted to its joint tenant, Leon P. Webb.

Wherefore, the judgment is reversed with directions to sustain the exceptions to the report of the commissioners and for proceedings consistent with this opinion.  