Burgett v. Apperson

Decision Date23 November 1889
Citation12 S.W. 559
CourtArkansas Supreme Court

Appeal from circuit court, Crittenden county; J. E. RIDDICK, Judge.

W. G. Weatherford, for appellant. O. P. Syles, for appellee.


The appellant, who is the daughter and sole heir of Isaac Burgett, deceased, presented her petition to the circuit court for a writ of certiorari to quash an order of the probate court confirming a sale of her father's lands made by the administrator to pay debts. The court caused the writ to issue, but quashed it upon an inspection of the record. It appears from the clerk's return to the writ that the probate court refused to order a sale of the lands upon the petition of Apperson, who was a creditor of the estate. Apperson appealed to the circuit court, and there obtained an order of sale. The administrator prosecuted an appeal from the judgment of the circuit court, but it was affirmed here. The cause was remanded to the circuit court, and an order was entered there, directing the administrator to make the sale at a time and upon terms named in the order. The original order of sale made by the circuit court had been certified to the probate court for execution, but no action was taken under it pending the appeal. The latter order was never certified to the probate court, but the administrator offered the lands for sale in pursuance of the new direction of the circuit court, and reported to the probate court that it had not been sold, because no one had bid two-thirds of its appraised value. The report was received and approved, but no other order was made. Something more than a year thereafter, without further authority from the court, the administrator offered the lands for sale without regard to their appraised value; and Apperson, the creditor upon whose petition the order of sale had been made, became the purchaser at the sum of $17,000. No money was paid on the purchase, but Apperson executed his notes for the purchase money, and received from the administrator what is termed in the record a "certificate of purchase." These proceedings were reported to the probate court, and were there approved, when the administrator immediately resigned. No deed has been made.

The petitioner alleges that she was an infant during these transactions, and had no information of them; that the administrator was her guardian; that, at the time the sale was confirmed by the probate court, his condition, both of body and mind, was such that he was incapable of protecting her interest; that a part of the land which was sold was her father's homestead at the time of his death; that it was described in the petition for and in the advertisement of sale, and in the administrator's report of sale, as the "Burgett Home Place." It also appears that Apperson was the only creditor of the estate at the date of sale; that his debt amounted to about $10,000 principal, and interest; and that a body of land comprising 1,634 acres, and appraised at $79,340, was offered in bulk to pay his debt. These facts are substantiated by the probate court record, except as to the petitioner's age and want of information, and the condition of her guardian, which appear from the petition and by affidavit adduced at the hearing. This proceeding was begun a short time after the petitioner was apprised of the facts, and within less than a year after she had reached the age of 18, which is the age of majority for females. The suit was begun three years and eight months after the order of confirmation.

The circuit court declared that the errors complained of did not render the sale a nullity, and for that reason declined to interfere. That the probate court has no jurisdiction to sell the homestead during the minority of any of the decedent's children is the settled law of this state. McCloy v. Arnett, 47 Ark. 445, 2 S. W. Rep. 71; Nichols v. Shearon, 49 Ark. 75, 4 S. W. Rep. 167; Stayton v. Halpern, 50 Ark. 329, 7 S. W. Rep. 304. But as that fact did not avoid the sale of the lands, which the court had jurisdiction to sell, and as the circuit court had no guide in this proceeding by which to separate the one from the other, it was not error to decline to interfere upon that ground, and leave the petitioner to her action at law for the possession of the homestead tract. It must be conceded that the probate court proceeded irregularly in every step taken in that tribunal after entering the circuit court's order of sale upon its records; but none of the errors go to the jurisdiction of the court, and consequently its action is not void. It approved the administrator's execution of the order of sale without learning from the record what disposition this court had made of the matter. The character of judgment it is to execute, when an appeal has been prosecuted to the circuit court, should be ascertained from a certified copy of the record of that court; and, if the matter is brought to this court for review, it should receive the certificate after the mandate of this tribunal has reached the circuit court. But in this instance the order of sale which had previously become the probate court's judgment by entry there (presumably before the appeal here was sued out) was affirmed, and the jurisdiction of that court to execute it, which had been suspended by the appeal, was restored, at least from the time when the circuit court entered its order in accordance with the mandate, and it was not without power to proceed. Green v. Clark, 24 Vt. 136; Dunham v. Dunham, 16 Gray, 577; Curtiss v. Beardsley, 15 Conn. 518. The court also erroneously approved the offering of the lands for sale by the administrator when no time had been previously fixed by it for a sale, and subsequently approved the report of the sale to Apperson, made more than a year afterwards, under like circumstances. But a sale upon a day other than that fixed by the order, if made in pursuance of a subsisting judgment of a superior court, is not a nullity after confirmation. It is an irregularity only, and like selling without notice of sale, or without notice of the application to sell, which the statute requires, does not render the sale void, according to a long line of decisions, beginning with Borden v. State, 11 Ark. 519. The statute which requires that lands which have been offered by an administrator, and not sold for want of a bid equal to two-thirds of their appraised value, shall not be reoffered within 12 months, (Mansf. Dig. § 184,) does not require a new order condemning the lands...

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5 cases
  • Henderson v. Henderson
    • United States
    • Supreme Court of Arkansas
    • 13 Octubre 1947
    ...... McCloy v. Arnett, 47 Ark. 445, 2 S.W. 71;. Nichols v. Shearon, 49 Ark. 75, 4 S.W. 167;. Stayton v. Halpern, 50 Ark. 329, 7 S.W. 304; Burgett v. Apperson, 52 Ark. 213, 12. S.W. 559; Bond v. Montgomery, 56 Ark. 563,. 20 S.W. 525, 35 Am. St. Rep. 119; Sparkman v. Roberts, 61 Ark. 26, 31 ......
  • Whaley v. Whaley
    • United States
    • Supreme Court of Arkansas
    • 5 Abril 1948
    ......The court said:. Moreover, the aid of the writ should never be granted except. to do substantial justice. Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559. Although not. strictly applicable to proceedings by certiorari,. § 4200, Sand. H. Dig., shows the policy ......
  • Tilghman v. Russell
    • United States
    • Supreme Court of Arkansas
    • 7 Mayo 1923
    ...for appeal except in instances where the right of appeal has been unavoidably lost through no fault of the petitioner. Burgett v. Apperson, 52 Ark. 220, 12 S. W. 559; In re Phillips, 80 Ark. 200, 96 S. W. 742; Pruitt v. International Order of Twelve, etc. (Ark.) 250 S. W. 331. See, also, In......
  • Ex parte Phillips
    • United States
    • Supreme Court of Arkansas
    • 1 Octubre 1906
    ...... a substitute for appeal except in instances where the right. of appeal has been unavoidably lost through no fault of the. petitioner. Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559. It can only correct excess in jurisdiction. or an illegal proceeding not reviewable otherwise, and like. ......
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