{ "id": 1553285, "name": "Simmons v. Carter & Company", "name_abbreviation": "Simmons v. Carter & Co.", "decision_date": "1916-10-16", "docket_number": "", "first_page": "547", "last_page": "553", "citations": [ { "type": "official", "cite": "125 Ark. 547" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "89 Ark. 284", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515217 ], "opinion_index": -1, "case_paths": [ "/ark/89/0284-01" ] }, { "cite": "85 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523352 ], "opinion_index": -1, "case_paths": [ "/ark/85/0556-01" ] }, { "cite": "52 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1913423 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/52/0341-01" ] }, { "cite": "106 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345620 ], "opinion_index": -1, "case_paths": [ "/ark/106/0563-01" ] }, { "cite": "67 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152552 ], "pin_cites": [ { "page": "83" } ], "opinion_index": -1, "case_paths": [ "/ark/67/0080-01" ] }, { "cite": "116 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532270 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/116/0361-01" ] }, { "cite": "116 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "89 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515230 ], "opinion_index": 0, "case_paths": [ "/ark/89/0289-01" ] }, { "cite": "89 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": 0 }, { "cite": "106 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345620 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/106/0563-01" ] } ], "analysis": { "cardinality": 458, "char_count": 10863, "ocr_confidence": 0.48, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3022266935253754 }, "sha256": "1b5cacf2c26c2d15b66ef0d504f9b6765995374a2574a495937f44b91ad86944", "simhash": "1:faedf7868e61aec4", "word_count": 1876 }, "last_updated": "2023-07-14T16:40:14.978358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Simmons v. Carter & Company." ], "opinions": [ { "text": "Smith, J.\nAppellant 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.\nFirst: 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.\nSecond: The petition for the order of sale does allege that the minor was without means with' which to \u201cclothe, feed and educate herself,\u201d and the petitioner did pray that the order of sale be made \u201cfor the purpose of maintaining and educating his said ward.\u201d 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\u2019s 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 \u201ceducation\u201d 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\u2019s schooling. Harper v. Smith, 89 Ark. 288.\nIn this connection it is urged that the proceeds of the sale were not devoted to the minor\u2019s 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.\nThird. 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\u2019s Digest. Long subsequent to the enactment of these statutes the Legislature enacted what is now section 4923 of Kirby\u2019s Digest, and while this section has not been treated as repealing section 190 of Kirby\u2019s 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\u2019s Digest, or in conformity with section 4923 of Kirby\u2019s 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. 289; Landreth v. Hansen, 116 Ark. 369.\nFourth. We do not agree with learned counsel that this sale is void because the guardian did not return with his report of sale a proper affidavit that he was not a purchaser of the land nor interested in any manner in the purchase thereof. The guardian\u2019s report does show that the land was sold to A. C. Carter & Company, and the affidavit of the guardian recites \u201cthat I am not interested in said sale in any manner.\u201d This, we think, is a substantial compliance with the requirements of the statute on this subject.\nFifth: It is finally urged that the court was without jurisdiction to confirm the guardian\u2019s report of sale because it contained the recital that the property had sold for two-thirds of its appraised value. Section 3796 of Kirby\u2019s Digest provides that no real estate of any minor shall be sold for less than three-fourths of its appraised value, and this requirement is jurisdictional. The court is without authority to confirm any sale of a minor\u2019s property which does not bring the required per - cent, of the appraised value, and confirmation of the sale can not supply this failure. Mobbs v. Millard, 106 Ark. 563. Section 3793 of Kirby\u2019s Digest provides that all probate sales of real estate made pursuant to proceedings not in substantial compliance with statutory provisions shall be\u00a1 voidable, and we have construed the word \u201cvoidable\u201d as here used to mean \u201cvoid.\u201d Mobbs v. Millard, supra. And since the enactment of this statute, we may \u2014 -notwithstanding there has been an order confirming a sale \u2014 inquire whether the provisions of the statute concerning probate sales have been substantially complied with. It is not contended that the land did not sell for three-fourths of its appraised value. It is only urged that the report of sale recited a sale for two-thirds of the appraised value. There is nothing in the order of confirmation showing a sale for two-thirds of the appraised value, and it affirmatively appears from .the recitals of the deed, which was approved by the court, that the land sold for three-fourths of its appraised value, and the recitals of this deed are made prima facie evidence of the facts there recited. Section 3799 of Kirby\u2019s Digest.\nWe must conclude, therefore, that before confirming the report of sale the court ascertained the truth of the matter, as it should have done, although it did not order any correction made of the erroneous recital contained in the report. The purpose and effect of section 3793 of Kirby\u2019s Digest is to throw open for investigation and inspection the question whether probate sales have been made in substantial compliance with statutory provisions, notwithstanding they may have been confirmed, and when that Investigation was made by the court below, the fact appeared that the land did sell for three-fourths of its appraised value, and the truth of that finding is not now questioned.\nEvidence was offered which strongly tends to show that appellant did not. derive the anticipated benefits from that sale, and that the sale has not been to her advantage. But this evidence, if true, can not defeat the sale, if it was made in substantial compliance with the statutes, and as we are of the opinion that it was so made, the judgment of the court below will be affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "C. F. Greenlee, for appellant.", "Manning, Emerson & Morris, for appellees." ], "corrections": "", "head_matter": "Simmons v. Carter & Company.\nOpinion delivered October 16, 1916.\n1. Guardian and ward \u2014 sale of ward\u2019s land \u2014 sufficiency of bond. \u2014 Where a guardian\u2019s bond is executed in a sum insufficient to cover the transactions required in the management of the ward\u2019s estate, that fact is a mere irregularity, and when the bond has been approved by the court, its insufficiency will not affect the validity of a sale of the ward\u2019s land.\n2. Guardian and ward \u2014 \u201ceducation and maintenance\u201d op child.\u2014 A sale of a minor\u2019s land, when the petition recited that the sale was \u201cfor the purpose of maintaining and educating\u201d the said minor, will be upheld, because a child,must be maintained while being educated, and maintenance is therefore a necessary expense in the education of the minor.\n3. Guardian and ward \u2014 sale of ward\u2019s land \u2014 proceeds\u2014proper expenditure. \u2014 The purchaser of property belonging to a minor is not bound to see that the purchase money is properly employed.\n4. Guardian and ward \u2014 sale op ward\u2019s lands \u2014 notice.\u2014Where a minor\u2019s lands are to be sold, notice thereof given pursuant to Kirby\u2019s Digest, \u00a7 190,orin conformity with Kirby\u2019s Digest, \u00a7 4923,is sufficient.\n5. Guardian and ward \u2014 sale op ward\u2019s lands \u2014 affidavit op guardian: \u2014 The report of the guardian, showing that his ward\u2019s lands had been sold to a certain company, accompanied by an affidavit reciting \u201cthat I am not interested in said sale in any manner,\u201d held sufficient to render the sale valid.\n6. Sale op minor\u2019s land \u2014 appraised value. \u2014 The court is without authority to confirm any sale of a minor\u2019s property which does not bring the required percent of the appraised value, and confirmation of the sale cannot supply this failure.\n7. Sale op minor\u2019s land \u2014 amount sold por \u2014 review.\u2014Under Kirby\u2019s Digest, \u00a7 3793, notwithstanding the probate court has confirmed the sale of a minor\u2019s land, the court may, on appeal, inquire whether the ' provisions of the statute concerning probate sales, havebeen substantially complied with.\nAppeal fronj Monroe Chancery Court; Jno. M. Elliott, Chancellor;\naffirmed.\nC. F. Greenlee, for appellant.\nThe sale was void because not in substantial compliance with statutory provisions. Kirby\u2019s Digest, \u00a7 3793.\n1. The statutory bond was not executed by the guardian. Kirby\u2019s Digest, \u00a7 \u00a7 3780-1-2-3; 116 Ark. 361-8-9.\n2. The probate court had no authority to order the sale for maintenance, but only for the education of the minor. Ib., \u00a7 3794.\n3. The court did not \u00f1x the time and place of sale and direct proper notice and the guardian did not give proper notice. Ib., \u00a7 \u00a7 3795, 190-1; 67 Ark. 80, 83; 75 Id. 6; 87 Id. 284-289.\n4. The guardian did not make the affidavit as prescribed by Kirby\u2019s Digest, \u00a7 192.\n5. 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\u2019s Digest, \u00a7 3796; 106 Ark. 563; 52 Ark. 341; 96 Id. 222; 115 Id. 572; lb. 385.\nManning, Emerson & Morris, for appellees.\n1. 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\u2019s Digest, \u00a7 \u00a7 3780, 3782, 3819; 116 Ark. 361; 89 Id. 284-8.\n2. The court had authority to order the sale for the maintenance and education of the minor. 85 Ark. 556. '\u2022\n3. Due notice was given. 89 Ark. 284-8-9.\n4. 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\u2019s Digest, \u00a7 \u00a7 192, 3795.\n5. 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." }, "file_name": "0547-01", "first_page_order": 573, "last_page_order": 579 }