It is stated by the Kentucky Court of Appeals that there has been some confusion in the application of Section 490 of the Civil Code of Practice (KRS 389.020(1)(b)). The cases of Atherton v. Warren, 120 Ky. 151, 85 S.W. 1100, Cammack v. Allen, 199 Ky. 268, 250 S.W. 963, and Trumbo v. Sanford, 305 Ky. 231, 203 S.W.2d 22, are cases in which a sale under this section was upheld. Those cases do not present facts similar to the facts presented by the case at bar.
See also Shoup v. Cummins, 334 Ill. 539, 166 N.E. 118, 65 A.L.R. 887. In Trumbo v. Sanford, 305 Ky. 231, 203 S.W.2d 22, it was held, among other things, that a legatee who was bequeathed money under the will of a co-owner of real estate was not a necessary party to a suit for partition of the property, notwithstanding there was a deficiency in his bequest, since the legatee had no interest in the realty but could only become interested by asserting a lien against it for the deficiency. Appellant was not a tenant in common, joint tenant, coparcener, lien creditor or owner of an undivided estate in the real estate involved herein and consequently could not, under our statute, compel partition.
" See, also, Restatement, Property, 177; Waldon v. Baker, 184 Okla. 492, 88 P.2d 352; Trumbo v. Sanford, 305 Ky. 231, 203 S.W.2d 22; Whittaker v. Porter, 321 Ill. 368, 151 N.E. 905. The decree is affirmed.