HISLE V. LEXINGTON-FAYETTE URBAN COUNTY GOV’T
PROPERTY: Real estate partition and circuit court jurisdiction
PANEL: BUCKINGHAM, PJ; THOMPSON, HENRY CONCUR
Edwin A. Hisle and Olive Sue Hisle Cook appealed from an Opinion and Order of the Fayette Circuit Court that denied their motion for relief brought pursuant to Kentucky Rules of Civil Procedure (CR) 60 .02, which sought to set aside as void two judgments entered in 1966 partitioning several parcels of real property. Appellants maintain that the circuit court lacked subject matter jurisdiction to entertain the original partition action in 1965-66 and, thus, that the judgments should be set aside and they should be granted fee simple title pursuant to the wills of their grandparents. COA affirmed.
If as requested the judgments are set aside, the appellants would then claim fee simple ownership of the two tracts of realty at issue as the surviving remaindermen under the wills of their grandparents following the deaths of their own parents. The COA disagreed with the appellants’ position on jurisdiction finding the circuit court did have jurisdiction and further held that the appellants are precluded from challenging the 1966 judgments at this late date.
Although modern partition proceedings generally involve statutory provisions, the jurisdiction of equity courts to partition real property is very ancient and has existed in common law both in England and this country since its founding. The statutes supplement, or are supplemented by, the traditional jurisdiction of equity courts to decree partition. With the merger of the historical court of law and court of equity, courts of general jurisdiction are empowered with jurisdiction over partition actions by the state constitutions.
In this case, the appellants acknowledge that in the 1965 partition action, the Fayette Circuit Court had in personam jurisdiction over the parties, all of whom were residents of the county and entered appearances in the suit, and in rem jurisdiction over the five tracts of realty involved in the suit, which were physically located within the geographical boundaries of the county. The appellants contend the court lacked authority to divide or partition the realty because the grandparents’ deeds did not devise equal estates to the grandchildren as remaindermen as arguably required for application of KRS 381.136.
While there is a legitimate question concerning whether the provisions of the grandparents’ wills strictly complied with the factors set forth in KRS 381.136, that issue concerns the specific facts of the case and does not concern the circuit court’s subject matter jurisdiction. As a court of general jurisdiction, the Fayette Circuit Court had subject matter jurisdiction derived from the Kentucky Constitution to decide “this type” of case, that being, a partition action. The General Assembly does not have authority to limit or control the circuit court’s subject matter jurisdiction. Furthermore, grandchildren either consented, waived, or were estopped from challenging any error in judgments partitioning family property.