Simmons v. Carter & Co.

• Decision Date: 16 October 1916
• Docket Number: 202
• Citation: 189 S.W. 176,125 Ark. 547
• Parties: SIMMONS v. CARTER & COMPANY
• Court: Arkansas Supreme Court

189 S.W. 176

125 Ark. 547

SIMMONS v. CARTER & COMPANY

No. 202

Supreme Court of Arkansas

October 16, 1916

Appeal from Monroe Chancery Court; Jno. M. Elliott, Chancellor affirmed.

Judgment affirmed.

C. F Greenlee, for appellant.

The sale was void because not in substantial compliance with statutory provisions. Kirby's Digest, 3793.

1. The statutory bond was not executed by the guardian. Kirby's Digest, §§ 3780-1-2-3; 116 Ark. 361-8-9.

2. The probate court had no authority to order the sale for maintenance, but only for the education of the minor. Ib § 3794.

3. The court did not fix the time and place of sale and direct proper notice and the guardian did not give proper notice. Ib., §§ 3795, 190-1; 67 Ark. 80, 83; 75 Id. 6; 87 Id. 284-289.

4. The guardian did not make the affidavit as prescribed by Kirby's Digest, § 192.

5. The probate court had no authority to confirm the report for the reason that it states that the land sold for two-thirds of the appraised value. Kirby's Digest, § 3796; 106 Ark. 563; 52 Ark. 341; 96 Id. 222; 115 Id. 572; Ib. 385.

Manning, Emerson & Morris, for appellees.

1. The bond was substantially as required by the statutes and approved by the court. All defects were cured by confirmation. But a failure to execute the bond would not invalidate the sale. Kirby's Digest, §§ 3780, 3782, 3819; 116 Ark. 361; 89 Id. 284-8.

2. The court had authority to order the sale for the maintenance and education of the minor. 85 Ark. 556.

3. Due notice was given. 89 Ark. 284-8-9.

4. The whole record and report shows that the guardian was not the purchaser at the sale. The affidavit is a substantial compliance with the statutes. Kirby's Digest, §§ 192, 3795.

5. The land sold for three-fourths its value. 52 Ark. 341. The whole proceedings were in accordance with law. Besides the confirmation cured all formal defects, and this is a collateral attack after the appellant had received the benefits and ratified the sale after maturity.

OPINION

SMITH, J.

Appellant brought this suit to set aside a conveyance made by her guardian of a forty-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 can not 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. 284, 116 S.W. 674.

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, and we have held that notice given pursuant to section 190 of Kirby's Digest, or in conformity with section 4923 of Kirby's Digest, was such a substantial compliance with the statutory provisions that a sale made upon notice given in either manner would not be held void after confirmation. Harper v. Smith, 89 Ark. 284; Landreth v. Henson, 116 Ark. 361.

Fourt...