[소유권이전등기말소청구사건][고집1973민(1),71]
A person entitled to inheritance, if there is no person to recover from a deceased head under the former common law;
Before the enforcement of the current Civil Code, there is a right to inherit the head of household and property even to those who have not recovered at the time of the death of the head of household, and the wife of the deceased who is the head of household has the right to inherit the head of household and property only if there is no lineal descendant
Articles 984 and 100 of the Civil Act
Plaintiff
Defendant 1 and 12 others
Seoul Central District Court (72 Gohap360) in the first instance trial
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The plaintiff's attorney shall revoke the original judgment.
On April 20, 1965 with respect to the real estate indicated in the attached list (1), Defendant 1 shall register transfer of ownership on the ground of sale or purchase as indicated in the attached list (2), Defendant 2, 3, 4, 5, and 6 shall receive the above registry office on the date of receipt of the above list (2), transfer of ownership on the ground of sale or purchase as stated in No. 8686 of the above registry office on the date of receipt of the above list (3), Defendant 7 shall accept the registration of transfer of ownership on the ground of sale or purchase as described in subparagraph 8685 of the above registry office on the real estate mentioned in the attached list (3), Defendant 8 shall receive the above transfer of ownership on the ground of sale or purchase as stated in the above list (4) 8690 on the real estate mentioned in the above list (5), and Defendant 9 shall receive the transfer of ownership on the ground of sale or purchase as stated in the above list (4026 on October 21, 1969).
All the costs of lawsuit are assessed against the defendants in the first and second instances.
The real estate entered in the attached list is originally owned by Nonparty 1, and provisional registration has been made to preserve each ownership transfer and ownership transfer claim as stated in the purport of the claim against the above real estate, and the fact that Nonparty 2 died without death on August 15, 1950 is no dispute between the parties.
In light of the above facts, the plaintiff 1 was the owner of the non-party 1, who was the plaintiff 1, and died on November 7, 1954, the plaintiff succeeded to the above real estate, and while the registration of ownership transfer was not made under the name of the plaintiff due to inheritance, the plaintiff 2, 3, 4, 5, and 6's deceased non-party 3, 12, 10, 7, and 8 were presumed to have purchased the above real estate from the deceased on April 20, 1965, and the non-party 1 and the non-party 4 were the non-party 1, the non-party 1, 9, and the non-party 1 and the non-party 1, the non-party 1, who was the non-party 5's heir, were the non-party 1 and the non-party 1, who was the non-party 1, who was the non-party 1, the plaintiff 1, who was not the plaintiff's heir, and the non-party 1, were not the plaintiff 1, 9.
However, prior to the enforcement of the current Civil Code, there exists the right to inheritance and property inheritance of the head of family to the head of the household who did not have the person who was the lineal descendant of the deceased at the time of the death of the head of family, and the wife of the deceased, who is the head of the family, has the right to inheritance and property inheritance of the head of family only when there is no lineal descendant of the deceased at the time of the death of the head of the deceased. In this case, there is no person who was the lineal descendant of the deceased at the time of the death of the head of the family, and there is the plaintiff who was the head of the post, and thus the plaintiff has the right to inheritance and property inheritance of the head of family. Accordingly, even if the non-party 4, who is the wife of the non-party 1, was registered as the head of the family as the head of the family, as seen above, the content of registration on the family register injury to that purport shall be null and void
The following facts are examined as to the defendants' purchase of the real estate of this case from the plaintiff, Eul evidence Nos. 3 through 8 (written copy of the register of the court below) which can be recognized as the authenticity by the testimony of non-party Nos. 2-1 through 4 (Receipt) and 3 (written consent) of the non-party Nos. 3 (written consent) without dispute about the establishment of the plaintiff. In full view of the whole purport of the testimony and pleading of the above witness, the plaintiff sale to the defendant Nos. 1, 7, 8, 10, 12, 3 (the defendant Nos. 2, 3, 4, 5, 6) of the real estate stated in the separate sheet of this case to the seller, and it is hard to recognize that the registration was made under the above defendant No. 1's name and the non-party No. 3's remaining legal relations, and it is contrary to the purport of each of the above registration No. 91 (the defendant No. 1, 1967).
Therefore, the plaintiff's claim for the cancellation of each of the above registrations registered in the name of the defendants is dismissed on the premise that the above registration is null and void, and the judgment of the court below which forms the conclusion is just, and the plaintiff's appeal is unfair, and the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost.
[Attachment List omitted]
Judges Lee Jin-jin (Presiding Judge)