Boreing, et al. v. Melcon, et al., Harlan, 1914

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Boreing, et al. v. Melcon, et al.

COURT OF APPEALS OF KENTUCKY

159 Ky. 623; 167 S.W. 870; 1914 Ky. LEXIS 833

June 19, 1914, Decided

PRIOR HISTORY:  [***1]  Appeal from Harlan Circuit Court. 

DISPOSITION: Petition for rehearing overruled. 

COUNSEL: CLAY & CARTER for appellant.

WILLIAMS & JOHNSON for appellee.

J. G. FORRESTER, Guardian Ad Litem for infant appellee. 

JUDGES: JUDGE HANNAH. 

OPINION BY: HANNAH 

OPINION

 [*623]   [**870]  RESPONSE BY JUDGE HANNAH TO PETITION FOR REHEARING--Overruling.

 [*624]  Upon petition for rehearing it is said by appellant that the first tract mentioned in the petition in the Harlan Circuit Court was not devised under the will of Vincent Boreing, but that his heirs acquired it by purchase after his death; and we are asked to modify the opinion herein delivered (159 Ky. 14), in so far as it refers to tract No. 1 in the petition described.

The petition does not disclose in what manner title to the tracts sought to be sold, was derived by the heirs of Vincent Boreing; but the will of said Boreing is set out in the petition filed in the action instituted in the Laurel Circuit Court (copied in answer of guardian ad litem herein), and it is therein alleged that the lands therein described, consisting of more than fifty separate tracts (the second tract described in the petition in the Harlan Circuit Court [***2]  being one of them), were all devised under the will of Vincent Boreing.

Upon a comparison of the description of tract No. 1 as set out in the petition filed in the Harlan Circuit Court, with the descriptions of the fifty odd tracts set out in the petition filed in the Laurel Circuit Court, we find that this tract is probably not included therein, and that there is nothing in the record to show in what manner the heirs of Vincent Boreing did derive title to tract No. 1 as set out and described in the petition filed in the Harlan Circuit Court.

As that part of the opinion herein delivered, having reference to the want of jurisdiction upon the part of the Harlan Circuit Court to order a sale of tract No. 1 in the petition described, was unnecessary to the decision of the questions raised by appellant upon this appeal, that part of the opinion is withdrawn and the opinion modified to that extent.

The petition for rehearing is overruled.