Mobbs v. Millard

• Decision Date: 10 February 1913
• Parties: MOBBS v. MILLARD
• Court: Arkansas Supreme Court

153 S.W. 821

106 Ark. 563

MOBBS v. MILLARD

Supreme Court of Arkansas

February 10, 1913

Appeal from Sevier Chancery Court; James D. Shaver, Chancellor reversed.

STATEMENT OF FACTS.

On the 28th day of August, 1904, John Mobbs departed this life intestate, leaving him surviving as his widow, L. L. Mobbs and as his minor children and only heirs at law, Frank Mobbs May Mobbs and Elmer Mobbs. The only property he owned at the time of his death was his homestead situated in Sevier County, Arkansas. At the October term, 1909, of the Sevier Probate Court the guardian of said minor children filed a petition asking for a sale of the land. The widow joined in the petition, waiving her rights of dower and homestead. An order of sale was made by the probate court. Pursuant to the order the land was duly appraised in the sum of nine hundred dollars, and on the 20th of November, 1909, the guardian sold the land to Morgan Pride for six hundred dollars. The sale was confirmed by the court and the guardian was ordered to execute a deed to the purchaser upon the payment of the purchase money. The guardian's deed was executed on the 1st day of June, 1910.

On the same day the purchaser at the guardian's sale sold the land to J. B. Millard for twelve hundred dollars, and executed him a warranty deed thereto. Frank Mobbs was several years older than the other children and when he arrived at the age of eighteen years, at the April term, 1911, of the Sevier Chancery Court, his disabilities as a minor were removed. On the 31st day of May, 1911, he filed his complaint in the chancery court, setting forth the above facts and asking that the guardian's deed to said land and also the deed from the purchaser at the guardian's sale to Millard be cancelled and set aside. The guardian, the purchaser at the guardian sale, Millard, the subsequent purchaser of the land and the minor brother and sister of plaintiff were all made parties defendant to the action. Morgan Pride, the purchaser at the guardian sale, and Millard, his vendee, and the guardian filed separate answers. They claim that the sale was valid and Pride and Millard each averred that they had made substantial improvements upon the lands since they purchased them. They brought into court seventy-five dollars the difference between the price of the land sold for and its appraised value, and tendered it to the plaintiff. A guardian ad litem was appointed for the minor children and made defense for them.

The chancellor found the issues in favor of the defendants and a decree was entered accordingly. The plaintiff has appealed.

Decree reversed and cause remanded.

James S. Steel, J. S. Lake and J. D. Head, for appellant.

The sale was not in substantial compliance with the law, and is therefore voidable. Kirby's Dig. § 3793. This statute is modeled after and is almost identical with section 30 of the General Statutes of Missouri, 1865, and that court has construed the statute to mean what it says, i. e., that a sale of a minor's land for less than three-fourths of its appraised value is invalid. 100 Mo. 269.

This case comes clearly within that class of abuses sought to be remedied by the Legislature at the suggestion of this court in Apel v. Kelsey, 52 Ark. 341.

W. H Collins and B. E. Isbell, for appellee.

If the Legislature had intended by the act to make all sales not made in conformity with its provisions of no effect, it would have used the term void and not voidable. The use of the terms voidable and substantial compliance clearly show that the Legislature intended to give an aggrieved party, when he could not truthfully make an allegation of fraud, the right to have the proceedings of the probate court relating to the sale reviewed, and the court thus obtaining jurisdiction was given the right to do justice between the parties as in all other cases in equity; in other words, it only gives an aggrieved party an additional ground for getting into court after confirmation of sale by the probate court.

OPINION

HART, J., (after stating the facts).

The issues raised by the appeal depend upon the construction to be given section 3793 of Kirby's Digest. It was enacted April 8, 1891, and is as follows:

"All probate sales of real estate made pursuant to proceedings not in substantial compliance with statutory provisions shall be voidable."

At the time of the sale in question section 3796 of Kirby's Digest was also in force and provides that "no real estate of any minor shall be sold for less than three-fourths of its appraised value."

The record in the instant case shows that...