38 Ark. 78 | Ark. | 1881
Though the Statute requires an executor, 1 or administrator, upon obtaining an order of the Probate Court for the sale land for the payment of the debts of estate, before offering if for sale, to have the same appraised by three disinterested householders of the county in which it is situated, yet, if he neglects to do so, and the sale is confirmed by the court, the sale would not be void, and could be set aside only on appeal from the order of confirmation, or by a direct proceeding for that purpose, and could not be attacked or impeached in a collateral proceeding. Carter v. Engles, 35 Ark., 205; Montgomery and wife v. Johnson et al., 31 Ark., 74, and cases there cited.
But we arc not to presume that the sale in this case had been confirmed. If it had been, the complaint should have so alleged. Until confirmed it was not completed or binding, and conferred no right to the property to the purchaser, or at least, to the interest that Andrews’ estate had in it, and he might call in question its validity. And it could not be known, though he brought the money into court, that he would ever be able to get a title. Ror. on Jud. Sales, sec. 2; Wells et al v. Rice et al, 34 Ark., 346.
The complaint, therefore, showed no equity or cause of action.
Aud if it had been shown in the complaint that the salejia(j been confirmed, and that Andrews’ administrator could convey the estate’s interest in the lots to Bell, the court should, before decreeing a foreclosure and sale, have compelled the plaintiffs to bring the deed into court. Anderson, ad., et al, v. Mills, ex’x., 28 Ark., 175; McGehee v. Blackwell et al, 28 Ark., 27.
The decree is reversed, and the cause remanded to the court below, with instruction to permit the plaintiffs, if so advised, to amend their complaint, and for further proceedings.
