
    Sudduth Coal Company v. Gates, et al.
    (Decided November 29, 1921.)
    Appeal from Pike Circuit Court.
    Infants — Partition—Subsequent Approval. — Plaintiffs, to whom land had been allotted in a partition proceeding, sued to recover on a note executed for royalties due under a lease they had made to defendant. Defendant admitted the debt, but defended on the ground that the partition proceeding in which the land was allotted to plaintiffs was not binding on an infant party for whom no defense was made, and that he had not received his fair share of the joint estate. The answer was made a cross-petition against the infant, and his guardian filed an answer denying the allegations of the cross-petition, and alleging that the partition was advantageous to the infant, and that another division would be against his interests.. It was shown by the depositions of several witnesses that the partition was fair and equitable: , Held, that the chancellor might approve and confirm the partition, and that the order was binding on the infant.
    S. D. STOKES for .appellant.
    AUXIER,.HARMAN & FRANCIS and J. J. MOORE for appellees.
   Opinion of the Court by

Judge Clay

Affirming.

C. M. Gates and Thomas Hatfield sued the Sudduth Coal Company to recover on a note for $500.00, which the company had executed for royalties due under a coal mining lease made by plaintiffs to .defendant. The defendant admitted the debt, but defended on the ground that the property leased formerly belonged to the heirs of John W. Smith, and that the partition proceeding, by which the title passed to plaintiffs, was not valid as to the infant owner, Orville Smith, for whom no defense was made. The answer further alleged that the partition was inequitable and that'the infant defendant never received his full share in the partition suit. A certified copy of the partition proceeding was filed with the answer and made a part thereof. The answer was also made a cross-petition against the infant,-Orville Smith, and his guardian. Thereupon the infant, by his guardian, filed an answer denying that the partition proceeding was invalid as to him, -or that he diet not receive his full share of the estate partitioned. He further alleged that the share which he received in the partition was equal to, if not greater than, the other shares therein, that it would be against his interests to have another partition proceeding, and asked that the court confirm the judgment rendered in the partition proceeding. Several witnesses testified by deposition that the partition was fair and equitable, and another partition proceeding would be against the interests of the infant. Thereupon the chancellor entered an order approving and confirming the partition, and rendered judgment in favor of plaintiffs for the full amount sued for. The coal company appeals.

The record in-the partition proceeding in the county court shows that the infant, Orville Smith, was properly served with process, but that no defense was made for him either by his statutory guardian or by another appointed by the court for that purpose.. However, after the report of the division had been filed, it appears that the guardian of the infant appeared in open court and approved the partition, and that the county court confirmed the report after hearing evidence as to the fairness of the partition. While it is conceded that the guardian of an infant, who was not before the court when the partition was made, may, after the infant has been properly served with process, appear in court and adopt the partition if it is fair and just, Kentucky Union Land Co. v. Elliott, 15 S. W. 518, yet it is insisted that the adoption of the report by the guardian of Orville Smith, and the confirmation thereof by the county court, was invalid because the evidence that the partition was fair was not taken by deposition. Whether or not.this be true, we deem it unnecessary to decide. In the case of Blue v. Waters, 114 Ky. 659, 71 S. W. 889, where one of the parties, to whom land was allotted, had instituted suit for specific performance of a contract of sale to a third person, and certain infants,-who were not parties to the partition proceeding, were made parties by the cross-petition of the defendant, and their guardian filed an answer alleging that the partition was advantageous to them, it was held that the chancellor might in such suit, on proof that the partition was equal and just, approve of the partition. This practice was followed in the present case. The infant was made a party by the cross-petition of the coal company. His guardian filed an answer alleging that the partition was advantageous to him, and asked that it be confirmed. It was shown by the depositions of several witnesses that the partition was fair and equitable, and that another division would be against the interests of the infant. Thereupon the chancellor entered an order approving and confirming the partition. Therefore the order was binding on the infant, and it is immaterial whether the action of the county court in approving the partition was valid or not. That being true, it follows that the plaintiffs are the sole owners of the land leased by the coal company and are entitled to recover on the note.

Judgment affirmed.  