Ingraham v. Baum
| Decision Date | 21 October 1918 |
| Docket Number | 183 |
| Citation | 206 S.W. 67,136 Ark. 101 |
| Parties | INGRAHAM v. BAUM |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Chancery Court, Fort Smith District; W. A Falconer, Chancellor; affirmed.
Decree affirmed.
J. V Bourland, for appellant.
1. The sale was not void because of clerical errors in description nor because the probate court authorized a private sale. The money was duly paid and the sale approved by the court. The purchaser took possession in good faith and paid taxes and made valuable improvements. The act of the agent binds the guardian. 76 Ark. 615; 89 Id. 435; 65 Id 325; 46 Id. 210; 21 Id. 533; 15 Id. 540. If the sale was void a decree should have been entered for the repayment of the purchase money, interest and taxes, etc.
2. But the sale was not void under our statutes. Kirby's Dig., §§ 3793, 3813, 3795, 3803; Act April 8, 1891; 32 Ark. 97; 32 Id. 391; 52 Id. 341; 51 Id. 338. The sale was a substantial compliance with the law; the lots brought full value and the money was paid and sale approved.
3. Appellant did not have to see that appellees received the benefit of the sale. 89 Ark. 284; 54 Id. 480; 16 Id. 377.
4. Private sale was perfectly lawful. 26 Ark. 421; Kirby's Dig., § 3813; Act April 8, 1891; Const. 1874, Art. 7, § 34.
5. The court erred as to betterments.
Winchester & Martin, for appellees.
1. The sale was void. It was a private sale and not made in compliance with law. 116 Ark. 361; Kirby's Dig., § 3813. There was no bond nor appraisement.
2. We find no authority in our law empowering the probate court to order a minor's real estate to be sold at private sale. It must be appraised and sold for not less than three-fourths its value. 115 Ark. 385; 106 Id. 563. Confirmation did not cure the error. The court had no jurisdiction. 123 Ark. 189; 125 Id. 291; 86 Id. 443; Ib. 446; 75 Id. 6; 17 Am. St. 667; 51 Id. 394. The court properly held that plaintiffs were the owners of two-thirds of the realty, but erred in holding that they were not entitled to one-seventh as sole heirs of Mary Baum.
3. The court erred in fixing the value of the improvements. On cross-appeal the findings as to the present value of the buildings should be reduced to $ 5,060.
OPINION
William and Marguerite Baum brought this suit to recover from appellant Ingraham their undivided interest in lots 5 and 6, block 3, Griffith & Nix Addition to Fort Smith, Arkansas. The lots were owned by their father at the time of his death, and he was survived by his wife and three children. The third child, Mary Baum, died without issue, and the plaintiffs claimed a part of this share also as heir at law of their deceased sister. The complaint contained a prayer for the restoration of the possession of the land and for an accounting as to rents.
Ingraham admitted having possession of the lots since August 11, 1909, and alleged that he acquired the right to this possession at that time by virtue of a sale made to him under an order of the probate court of Sebastian County, which sale had been duly approved and confirmed.
After her husband's death, Mrs. Baum married one Turner McGilberry, and removed with her children to his home in Oklahoma, where they have since resided. McGilberry became the guardian of the children in Oklahoma, and in 1909 appointed one T. N. Reed as his agent to procure an order of the probate court for the sale of the lots above described. This sale was attempted to be had under the provisions of section 3813, Kirby's Digest, and the court directed the agent to sell the land privately. The land was sold privately without appraisement or other compliance with the general statutes regulating the sale of real estate owned by a resident minor, but the sale was reported to and approved by the court, and a deed was executed. The court below held the sale void, and referred the question of the rents and betterments to a master, whose report was excepted to by both parties, and the court made a finding on this report, from which both parties have appealed.
At the time of the institution of the proceeding in the probate court to procure the order of sale, Mary Baum, the oldest child, was a minor, and the order of sale included her interest as well as that of the younger children, but, at the time of the execution of the deed, Mary Baum, had become of age, and she personally joined in the execution of the deed, together with her mother, who conveyed her dower interest. Mary Baum's interest was described in the deed as being two-ninths, and there was a prayer in the answer and cross-complaint that the deed be reformed in this respect and made to cover the three-ninths, or one-third interest which Mary Baum individually owned, subject to the dower interest of her mother. This relief was granted, and the deed was reformed in accordance with the intention of the grantor, as found by the court, to convey her entire interest in the land. The cross appeal questions this action also.
At the April, 1906, term of the probate court, McGilberry, as guardian, procured an order of the court for the sale of the lots, and offered them for sale pursuant to this order, but the sale then made was not approved for the reason that the bidder did not offer to pay three-fourths of the appraised value. The order under which the sale was finally made was procured by Reed on August 5, 1909, a day of the July term, 1909. This order recited that a sale of the lots was necessary for the support and education of the minors, and that the property could be sold to better advantage at private sale. A private sale without appraisement or publication was made and approved by the court, and the deed mentioned above was executed by Reed pursuant to this authority.
Section 3813, Kirby's Digest, reads as follows:
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