Greer v. Anderson

• Citation: 35 S.W. 215
• Parties: GREER v. ANDERSON.
• Decision Date: 28 March 1896
• Court: Arkansas Supreme Court

Page 215

35 S.W. 215

GREER v. ANDERSON.

Supreme Court of Arkansas.

March 28, 1896.

Appeal from circuit court, Lee county; Grant Green, Jr., Judge.

Action in ejectment by De Witt Anderson against J. W. Greer. From a judgment for plaintiff, defendant appeals. Reversed.

McCulloch & McCulloch, for appellant. John J. & E. C. Hornor, for appellee.

WOOD, J.

Plaintiff, Anderson, brought ejectment against defendant, Greer, for a tract of land in Lee county. Both parties deraign title from the heirs of one G. W. Wilcox, deceased. The plaintiff claims under a conveyance from the guardians of said heirs, and the defendant claims under a deed from one of these heirs, the sole survivor, after she became of age. The cause was tried and determined by the court below, sitting as a jury, upon the following agreed statement: "It is stipulated and agreed between the plaintiff and defendant that the records of the probate court of Phillips county, Arkansas, show no report of sale made by the guardians of Elizabeth J., Martha J., and Luncinda Wilcox, or confirmation made of such sale by said court, and that, if the deed of such guardians to Thomas M. Jacks, filed as Exhibit D, or No. 1, to plaintiff's complaint, passed the legal title of such minors, without the confirmation of such sale by said probate court, then plaintiff is entitled to a verdict." The court made a general finding in favor of plaintiff, and rendered judgment accordingly.

1. A sale by a guardian, under an order of the probate court, is a judicial sale; and such sales are incomplete until they are reported to and confirmed by the court. Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102; Reid v. Hart, 45 Ark. 41; Gwynn v. McCauley, 32 Ark. 97; Ror. Jud. Sales, §§ 1, 7, 13-16, 124, and authorities cited in note. The guardians' sale upon which appellee relies was made under the act of 1846, which provides that the sale "shall be conducted as the court may direct, and upon terms approved by the court." Nothing more is required to show that the court is the vendor in sales made under the act. The contention that the purchaser would take a title if the deed showed that the order of the court had been fully complied with is unsound. Nor is it correct to say that the sale had been confirmed in advance, provided, only, the terms of the order were fully complied with. The deed itself does not show, upon its face, that the sale had been reported to and confirmed by the probate court. Under the act the guardian or other functionary designated by the court to make the sale receives directions from, and is to make the sale upon terms approved by, the...