Harper v. Smith

• Citation: 116 S.W. 674,89 Ark. 284
• Parties: HARPER v. SMITH
• Decision Date: 15 February 1909
• Court: Supreme Court of Arkansas

116 S.W. 674

89 Ark. 284

HARPER v. SMITH

Supreme Court of Arkansas

February 15, 1909

Appeal from Mississippi Chancery Court, Edward D. Robertson Chancellor; reversed.

Judgement reversed and remanded.

D. F Taylor, for appellant.

1. The real estate of a minor cannot be sold except for the purposes designated by, and under the authority of, the statutes; and in this State the statutes authorize such sale only for the purpose of education and maintenance of the minor, or for reinvestment of the proceeds for his benefit. 2 Am. & Eng Enc. of L., 57 and notes; Kirby's Dig. § § 3794, 3801.

2. Sales of real estate not made in substantial compliance with statutory provisions are voidable. Kirby's Dig. § 3793. And where, in the sale of an infant's land, no special bond is made as required by law, and the notices required by law to be posted are not posted, such sale is voidable, notwithstanding notice may have been published in a newspaper. Kirby's Dig. § § 3790, 3795, 190; 109 S.W. 534; 52 Ark. 341.

Armstrong & Gravette and J. T. Coston, for appellee.

1. The publication of the notice of sale in a newspaper, instead of by posting notices, was not an error or irregularity, and is no ground for setting aside the sale. The statutes cited by appellant apply only to cases where sale is made for the purpose of education of the minor. In sales made for the purpose shown in this case, the manner of giving notice is left to the directions of the court. Kirby's Dig. § 3803. If a special bond was necessary, the legal presumption is that it was given; but, if not given, that failure does not affect the validity of the confirmed sale. 54 Ark. 484; 52 Ark. 342; 31 Ark. 82; 97 S.W. 291; 66 S.W. 347; 109 S.W. 534; 35 N.W. 80; 33 P. 113; 118 U.S. 195; 129 U.S. 96; 24 Kan. 278; 47 Kan. 58; 26 O. St. 636; 112 S.W. 380. The word "substantial" in the section referred to by appellant, Kirby's Dig. § 3793, refers only to the vital features of the statute controlling probate sales.

2. There was no error in allowing the purchaser to retain amount of his account against the minor for necessaries furnished to her. 3 Pomeroy, § 1300; 37 Ark. 425; 1 Pomeroy, §§ 3378, 385; 112 S.W. 380.

OPINION

MCCULLOCH, C. J.

This is an action instituted by plaintiff, Zula Harper, against W L. Smith, to cancel and set aside a sale of the plaintiff's land made by her guardian while she was a minor. The present action was instituted in 1907; and the sale by the guardian took place in the year 1894, pursuant to the orders of the probate court entered at the July term of that year.

The plaintiff owned two tracts of land in Mississippi County: the one in controversy, which was wild and unimproved, and the other, which contained 95 acres and had improvements thereon which yielded some rental. One H. E. Knight was her guardian, under appointment from the probate court of Mississippi County, and had given the regular bond required by statute. In his petition to the probate court for the sale of the land, he alleged that these two tracts of land constituted all the property of his ward; that the other tract was incumbered by a mortgage, executed by plaintiff's ancestor to secure the payment of a debt in the sum of $ 325, which was then due and unpaid; that his ward had no means to pay off or discharge said mortgage, except the unimproved land sought to be sold; that it would be manifestly to the benefit of said ward that the said land be sold and the proceeds of the sale thereof invested in the payment and discharge of the mortgage, thereby to save her improved farm from sale thereunder. The probate court entered an order directing the guardian to sell said tract of land upon terms therein named, after causing the lands to be appraised and the sale advertised by publication in a newspaper. At a subsequent term of the court, the guardian reported that he had made a sale, after advertisement and appraisement, in accordance with the terms of the order, and that the defendant, Smith, and one Williams had purchased it at said sale for the sum of $ 600, and had paid the purchase price. The court thereupon entered an order confirming the sale, and the guardian executed his deed to said purchasers conveying the land to them.

At the hearing of this cause in the court below, a decree was entered annulling the sale by the probate court; and, after reference to a master, a decree was entered in behalf of the plaintiff awarding the land to her, but adjudging a lien thereon in favor of the defendant for the value of improvements, after deducting rents. The plaintiff appealed from the decree, and subsequently the defendant prayed and obtained a cross-appeal.

The first point of attack upon the validity of this sale is that the special bond required by the statute [Kirby's Digest, § 3803] to be given where lands of an infant are sold for reinvestment was not given. This requirement of the statute applies only to sales for reinvestment, and does not apply to sales made for the education and maintenance of the infant. Tobin v. Spann, 85 Ark. 556, 109 S.W. 534.

The question then arises, whether this sale was made for the education and maintenance of the ward, or for reinvestment, or for either purpose. The statute contains no authority for the sale of an infant's land except for the purposes above specified.

The purposes of the sale were clearly set forth in the petition and the order of court; and it is plain that it was not for investment of the proceeds, but to pay off and discharge an incumbrance on another tract owned by the ward. The payment of a debt is not an investment. It is true that the petition and order of sale designated it as a sale for...