170 S.W.2d 603 | Ark. | 1943
By his complaint filed in the lower court, appellant challenged the validity of the sale to appellee of certain lands owned by his deceased father, made on February 6, 1926, by appellant's mother as administratrix of his father's estate, alleging that this sale was void for the following reasons: "(1) The court did not appoint three disinterested householders of the county to appraise said land. (2) That if said land was appraised at all, with or without the appraisers being appointed by the court, they were not disinterested householders of the county in which said court was held, or in which the lands appraised lie, and did not take an oath in writing that they would well and truly appraise the lands. (3) The petition for the sale of said land was not verified by the affidavit of the administratrix. (4) The said petition was not accompanied by the appraisement and list of sales of the personal property of such estate. (5) The administratrix did not annex to her report or return her affidavit that she was not the purchaser of such lands, or any part thereof, and that they were not purchased for her use and that she was not in any way interested in the purchase thereof. (6) The order of said court or judge, does not show or recite that Hattie Fisher was duly and legally appointed and qualified, nor does the said judgment recite that the sale was conducted according to law, nor that the facts set forth in the petition entitled the said administratrix to make the said sale. (7) Said orders were all made by the judge in vacation, and not by the court."
To reverse the decree of the chancery court sustaining appellee's demurrer to the complaint this appeal is prosecuted.
It has been frequently held by this court that in equity the exhibits to the complaint control the allegations thereof. Moore v. Exelby,
By 177 of Pope's Digest it is provided: "In all administrator's sales heretofore or hereafter made, the finding and recital in the judgment or decree of the probate court authorizing and ordering any such sale, that the administrator was duly and legally appointed and qualified; that the sale was conducted according to law; and that the facts set forth in the petition entitled the said administrator to make the said sale, shall be conclusive and binding on all parties having or claiming an interest in the said sale, save upon direct appeal to the circuit court made in such cases as are now provided by law; and such finding and judgment or decree of the probate court shall not be open to collateral attack save for fraud or duress." It appears from the copies of the orders of the probate court attached to appellant's complaint that the probate court found that requirements of the statute as to *725 verification of the petition for sale, as to filing of appraisement and sale bill of personal property, as to appraisement of the lands, and as to the affidavit of the administratrix that she was not interested in the sale were all substantially complied with, and, in the absence of an attack on these orders for fraud or duress, the findings set out in these orders are, under the mandate of the Legislature, final and conclusive.
It is contended by appellant that the order for the sale and the order of confirmation thereof are both void because they were made by the judge in vacation and not by the court. While it is alleged in the complaint that these orders were made in vacation, and not in term time, the copies of orders complained of, attached as exhibits to the complaint, indicate that these orders were made by the court. There is a notation on each of them showing the date on which they were made, the term of court at which they were made, and the book and page of the court record on which they appear to have been recorded. The copies of these orders, with these notations, are a part of appellant's complaint, and, as pointed out above, the recitals contained in these orders must control, where there is any conflict between their contents and the general averments of the complaint.
Inasmuch as these orders are prima facie valid and appear to be duly entered in the judgment record of the court as orders made by the court in term time, the correctness of their recitals cannot be questioned by collateral attack in a proceeding in another court. Justice HART, speaking for this court, in the case of Woodruff County v. Road Improvement District No. 14,
It is next urged by appellant that the sale complained of was invalid because it was a private sale and was not held in compliance with the statutory requirement for notice. In support of this contention appellant cites the case of Gibbs v. Singfield,
It is finally argued by appellant that the sale was void because the order approving the sale recites that before the sale the real estate had been duly appraised by "three disinterested capable persons" instead of by "three disinterested householders of the county in which the lands and tenements are situated," as required by 158 of Pope's Digest. Under a fair interpretation of the language of the court's order it might well be said that the finding of the court that the appraisers were "capable" appraisers amounted to a finding that they were qualified under the requirements of the statute; but this court has held that the failure of an administrator to have any appraisement made would not render the sale void when it was attacked on that ground in a collateral proceeding. Belt v. Green,
The decree of the chancery court is correct, and it is affirmed. *729