Simmons v. A. C. Carter & Co.
| Decision Date | 16 October 1916 |
| Docket Number | (No. 202.) |
| Citation | 189 S.W. 176 |
| Parties | SIMMONS v. A. C. CARTER & CO. |
| Court | Arkansas Supreme Court |
Appeal from Monroe Chancery Court; Jno. M. Elliott, Chancellor.
Action by Ruth Simmons against A. C. Carter & Co. Judgment for defendant, and plaintiff appeals. Affirmed.
C. F. Greenlee, of Brinkley, for appellant. Manning, Emerson & Morris, of Little Rock, for appellee.
Appellant brought this suit to set aside a conveyance made by her guardian of a 40-acre tract of land which she had inherited from her mother. She alleged that the sale and conveyance to appellee, who was the defendant below, was void for the following reasons: First, that the guardian had failed to execute a sufficient bond; second, that the sale was not ordered solely for the purpose of her education; third, that the sale was void because the notice of sale was not given as required by law; fourth, that in reporting the sale no proper affidavit was made by the guardian reciting that he was not interested in the sale; fifth, that the court had no authority to confirm the report of sale because it recited that the land had been sold for two-thirds of its appraised value. These questions will be discussed in the order in which they have been stated.
First. It is admitted that the guardian executed a bond conditioned as required by the statute; but it is said that inasmuch as its penalty was only $100, it must be assumed that in its execution no account was taken of the value of the land, and that a bond should and would have been required in this amount if only the personal property had been taken into account. The bond, of course, should have been executed for a larger sum; but there was a bond, and it was conditioned as required by law, and its sufficiency was a question which addressed itself to the sound discretion of the court, and the failure to execute a larger bond is a mere irregularity which cannot now affect the validity of the sale.
Second. The petition for the order of sale does allege that the minor was without means with which to "clothe, feed, and educate herself," and the petitioner did pray that the order of sale be made "for the purpose of maintaining and educating his said ward." At the time of this petition the minor was of school age, and it was, therefore, proper for the probate court to determine whether or not this sale was necessary for her education under section 3794 of Kirby's Digest. It is conceded that the sale was had under the authority of that section; but it is urged that counsel placed too narrow a meaning upon the word "education" there employed. It is true that this section authorizes a sale only for the primary purpose of educating the minor, but a child must be maintained while it is being educated, and maintenance is therefore a necessary expense in the education of the child. The word "education" as here employed must be regarded as including those expenses necessarily incident to one's schooling. Harper v. Smith, 89 Ark. 288, 116 S. W. 674, 131 Am. St. Rep. 93.
In this connection, it is urged that the proceeds of the sale were not devoted to the minor's education. But the purchaser at the sale is not bound to see that the money is properly employed. Nor is his purchase invalidated because it is diverted from the purpose for which it was intended. Harper v. Smith, supra.
Third. The notice of sale was given by publication in a newspaper, and no notices were posted as provided by sections 190 and 3795 of Kirby's Digest. Long subsequent to the enactment of these statutes the Legislature enacted what is now section 4923 of Kirby's Digest, and while this section has not been treated as repealing section 190 of Kirby's Digest, it has been regarded as providing an optional method of giving such notices,...
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